STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2073

)

MARGARET IRVIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on November 6-8 and 28, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Darren K. Edwards, Esquire

School District of Palm Beach County Office of General Counsel

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406

For Respondent: Thomas L. Johnson, Esquire

Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

STATEMENT OF THE ISSUES

Whether the Respondent should be terminated from her employment with Petitioner as a result of her teaching performance.

PRELIMINARY STATEMENT

By letter dated March 30, 1995, the Petitioner, School District of Palm Beach County (School District) notified Respondent, Margaret Irvin (Irvin) that she would not be reappointed to teach in the School District due to her failure to correct teaching deficiencies identified during the 1993-94 school year.

Irvin requested an administrative hearing. On April 20, 1995, the matter was forwarded to the Division of Administrative Hearings for assignment to a hearing officer.

The final hearing was scheduled for August 15-17, 1995. Pursuant to a request from the parties, the final hearing was continued until November 6, 1995. The final hearing was not completed in the time allotted, and it was reconvened on November 28, 1995.

At the final hearing, the School Board called the following witnesses: Jeanne Burdsall, Lynne McGee, Mary Gray, Dorthea Kelsey, Juanita Malone, Glenda Garrett, Melvis Pender, and Gale Fulford. Petitioner's Exhibits 1-32 were admitted in evidence. At the final hearing, Irvin testified in her own behalf and called the following witnesses: Christina Diaz, Helen Baker, and Clarence Gunn. Respondent's Exhibits 1-10 and portions of the deposition of Louis Haddad were admitted in evidence.

The parties filed a Prehearing Stipulation in which they stipulated to certain facts which are set forth on pages 9-11 of the Prehearing Stipulation.

At the final hearing the parties agreed to submit their proposed recommended orders within 20 days of the filing of the transcript. The transcript was filed on January 16, 1996. Respondent filed a Motion for Extension of Time to file Proposed Recommended Order. The time was extended until February 15, 1996. Respondent filed another request for extension of time. The time for filing proposed recommended orders was extended to March 11, 1995. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Margaret Irvin (Irvin) has been employed as a classroom teacher with the Palm Beach County School District (School District) since the 1965-66 school year, with a break in service between 1967 through 1978 and again from 1979 through 1982. Irvin received a continuing contract for the 1985-1986 school year and has remained on continuing contract with the School District through the 1994-1995 school year.

   
   

2. Irvin is employed pursuant to a Professional Service Contract from which she may be discharged only in accordance with the terms of Sections 231.36, 231.28 and 231.29, Florida Statutes.

   
   

3. From 1982 through June 1993, Irvin taught pre-kindergarten at Belle Glade Elementary School (Belle Glade) and received satisfactory evaluations.

   
   

4. The use of certified classroom teachers in the School District's pre- kindergarten program was discontinued at the end of the 1992-1993 school year.

   
   

5. Irvin is certified by the State of Florida to teach all early childhood grade levels, which would include pre-kindergarten through sixth grade. For the 1993-1994 school year Irvin was assigned to teach a first grade class of fifteen students at Belle Glade.

   
   

6. During the 1993-1994 school year, Lynn McGee (McGee) was the principal at Belle Glade. As part of her duties, McGee was responsible for evaluating Irvin's work performance.

   
   

7. A Classroom Teacher's Assessment Evaluation Form is used in evaluating a teacher's performance in the classroom. This form is used for mid-year evaluations and for annual evaluations. Specific areas are marked on the form as being either satisfactory or unsatisfactory. If a teacher receives unsatisfactory in fewer than five areas, the teacher is given an overall rating of satisfactory. If a teacher receives unsatisfactory in more than four areas, the teacher is deemed to have an overall unsatisfactory rating.

8. In December 1993, McGee presented Irvin with a mid-year evaluation of her performance as a classroom teacher. The overall evaluation was unsatisfactory and identified the following areas in which Irvin needed to improve her teaching performance:

   
   

   1. Management of Student Conduct.

   2. Instructional Organization and Development.

   3. Presentation of Subject Matter.

   4. Establishes an Appropriate Classroom Climate.

   5. Demonstrates Ability to Plan Effectively.

   6. Develops and Maintains an Accurate Record Keeping System.

      
      

9. In the area of Management of Student Conduct, the teacher is evaluated on whether she keeps the students under control at all times. This area also covers teacher "withitness", which means the ability to know what the students are doing at all times. During her observations for the mid-year evaluation, McGee saw students talking and walking around and not being on task. Irvin had a chart on the wall for a behavior plan but she was not implementing the plan in the classroom. Irvin demonstrated a lack of "withitness."

   
   

10. The area of Instructional Organization and Development covers lesson delivery, whether a teacher uses a variety of techniques, whether she teaches a complete lesson, and the actual presentation of the lesson itself. During McGee's observations, Irvin relied heavily on the use of dittos and did not use a variety of teaching techniques. Although all first grade teachers were using the same dittos, Irvin could have refrained from using one ditto sheet after another and varied the activities. Irvin did not follow the steps which are used to teach a lesson: orientation to the students, beginning review, teaching the concept, and an ending review or closure. Irvin asked questions which called for a unison response, which is usually not appropriate. A unison response does not allow the teacher to determine if all the students are giving the correct response to the question. Irvin did not ask a lot of "higher order questions", which are questions requiring the student to analyze and apply the information given.

    
    

11. The area of Presentation of Subject Matter is specifically directed to the question of whether the teacher teaches concepts. A concept is taught by giving a definition and providing examples and nonexamples. McGee did not observe Irvin teaching any concepts.

    
    

12. The area of Establishes An Appropriate Classroom Climate looks at the environment of the classroom, including the physical environment and whether the classroom is warm, caring and conducive to learning. When McGee observed the classroom, it did not have an environment which was conducive to learning. The room was not "print rich", which means that the classroom did not have a lot of written materials on the wall, labels on objects, and pictures on the walls. McGee's opinion was that the classroom did not present a warm and caring environment.

    
    

13. The area of Demonstrates Ability to Plan Effectively is directed to the teacher's ability to put a plan together and whether the teacher is executing the plan when observed. Irvin did not have written lesson plans.

    
    

14. The area of Develops and Maintains an Accurate Record Keeping System deals with properly recording the students' grades. During the first nine weeks of school, Irvin failed to maintain a grade book.

15. In an effort to assist Irvin to improve, McGee sent Irvin to a workshop, provided demonstration lessons, and told Irvin to observe some of the other first grade classrooms. Additionally, Irvin was provided with sample lesson plans and was told to attend the weekly meetings of the first grade teachers where they did their lesson plans. Irvin sometimes did not go to the meetings or was late. Irvin was also provided with a sample grade book.

    
    

16. Irvin disgreed with the content of the December 1994 evaluation.

    
    

17. In March 1994, Irvin received from McGee an annual evaluation of her performance as a classroom teacher rating her overall performance as unsatisfactory and identifying the following areas which needed improvement:

    
    

    1. Management of Student Conduct

    2. Instructional Organization and Development

    3. Presentation of Subject Matter

    4. Establishes Appropriate Classroom Climate

    5. Demonstrates Ability to Plan Effectively

       
       

18. In the area of Management of Student Conduct, Irvin still had students who were not on task. There was down time in the class because of student misbehavior and failure to follow instructions, resulting in very little teaching time.

    
    

19. In the area of Instructional Organization and Development, Irvin continued to rely heavily on dittos and did not vary her teaching techniques. The activities were disjointed rather than flowing and interrelated. Irvin did not teach a complete lesson which included the necessary elements for a lesson.

    
    

20. In the area of Presentation of Subject Matter, Irvin again failed to teach concepts.

    
    

21. In the area of Establishes an Appropriate Classroom Climate, McGee observed that Irvin did not smile or express enthusiasm. Her classroom did not provide a happy environment which was conducive to learning.

    
    

22. Irvin was still not preparing lesson plans. McGee observed that for the week of February 7-11, 1994, there was almost no planning.

    
    

23. By the time of the annual evaluation, Irvin had begun to keep a grade book. She was evaluated satisfactory in the area of Develops and Maintains an Accurate Record Keeping System.

    
    

24. Irvin disagreed with the content of the March 1994 Evaluation.

    
    

25. After the 1993-1994 annual evaluation, McGee notified the superintendent of schools that Irvin's annual evaluation was unsatisfactory. The superintendent sent a letter to Irvin advising her that she would have the following school year to remediate her teaching deficiencies.

    
    

26. On May 4, 1994, Dr. Christina Diaz, a board certified neurologist, diagnosed Irvin as having Attention Deficit Disorder (ADD). Irving advised McGee a few days later that she had been diagnosed with ADD.

    
    

27. On June 9, 1994, Irvin was placed on a Professional Development Plan (PDP) by the administration of Belle Glade to aid Irvin in remediating each area

    of concern contained in the March 1994 evaluation. The PDP also contained materials regarding deficiencies in the area of Develops and Maintains Accurate Record Keeping System, which was not included on the March 1994 evaluation as an area of concern. The PDP provided that a team of educators, including someone employed outside the School District, observe Irvin's performance and provide her with feedback and improvement strategies. The PDP also provided for Irvin to attend workshops, to review teacher effectiveness manuals, and to observe the performance of other teachers.

    
    

28. Irvin was assigned as a kindergarten teacher in the 1994-1995 school year.

    
    

29. The principal at Belle Glade for the 1994-1995 school year was Glenda Garrett (Garrett). Like McGee, Garrett's duties included evaluating Irvin.

    
    

30. In September, 1994, Irvin attended an assistance review meeting, where she received the list of observers and the approximate dates that they would be observing her classroom performance. Through out the implementation of the PDP, Irvin was kept advised of the times when she would be observed.

    
    

31. On September 29, 1994, Melvis Pender (Pender), an Area IV Instructional Support Team member in math and science, observed Irvin. The students were noisy. Irvin asked questions that called for unison responses, which made it difficult for the teacher to detect students who were giving incorrect responses. The discipline plan that Irvin was using was not effective and emphasized the bad behavior. Mr. Pender made recommendations on ways to improve in the areas that needed improving and provided them to Irvin.

    
    

32. On September 30, 1994, Juanita Malone, assistant principal at Belle Glade, observed Irvin. The students were very noisy and Irvin kept turning the lights on and off to get their attention. Irvin was teaching the children about patterns during the observation. She started using links of four different colors to illustrate the lesson, but when she saw that a four color pattern was too difficult for the children to understand she switched to a simpler two color pattern. The students had not used the links before and many of the students spent time during the lesson playing with the links. Ms. Malone shared her observation with Irvin.

    
    

33. On October 21, 1994, Irvin was observed by Jeanne Burdsall ("Burdsall"), the Manager of Professional Standards for the Palm Beach County School System. During the observation, Irvin did not teach a lesson. She did not have any lesson plans. Irvin did not smile or show any enthusiasm during the observation. She did not teach any concepts. Irvin lost valuable teaching time while she was looking for a misplaced "birthday box." She gave birthday cake to the children just prior to lunch. Again she lost teaching time while she had each child individually take his placemat to the sink, resulting in the children becoming disruptive while they were waiting for all the children to clean up. Burdsall put her observations and suggestions for remediation in writing and gave it to Irvin.

    
    

34. On October 26, 1994, Irvin met with Burdsall, Garrett, and Clarence Gunn, her union representative to review the progress of the PDP. During the meeting, Irvin advised everyone that she had ADD and was taking medication for the condition. Burdsall said that she would provide Irvin with a copy of the American's with Disability Act (ADA) policy and request for information. Burdsall stated that she would see if someone from the School District could locate a local neurologist who could treat Irvin.

35. At the October 26 meeting, Irvin stated that she plans by putting ideas and themes down as she goes along. Sometimes she writes them down before the activity and sometimes it is afterward. Garrett gave Irvin a set of model lesson plans. Irvin was instructed to prepare two days of lesson plans which could be used by a substitute teacher if necessary. It was agreed that Irvin would be allowed to shadow another kindergarten teacher.

    
    

36. In the fall of 1994, Irvin attended workshops on intergrated curriculum, language arts and math manipulatives.

    
    

37. On October 27, 1994, Mary Gray (Gray), a professor of Education Leadership at Florida Atlantic University, observed Irvin. Gray noted that the students were too noisy and could not hear directions that were being given by the teacher. Irvin did not have any lesson plans. Irvin asked the children multiple questions which resulted in confusion. Irvin told the class about a student's father who had been shot. Other children began to talk about unhappy incidents in their lives such as a brother who had gotten stuck in the eye with a knife. Gray felt that such discussion was inappropriate for kindergarten students. Gray shared her observation comments and suggestions on ways to improve with Irvin.

    
    

38. On November 17, 1994, another meeting was held to review the progress of the PDP. Irvin was given the ADA policy with the medical request for information and was told to take it to the neurologist of her choice as soon as possible. Irvin had failed to turn in the two days of lesson plans as requested in the October meeting. She was again instructed to prepare the plans. Irvin was going to be released for two days to shadow a kindergarten teacher, who would demonstrate the whole language approach to teaching. Irvin asked for the materials that were handed out in a October 28 workshop and Ms. Burdsall agreed to provide her with those materials.

    
    

39. On November 18, 1994, Gale Fulford (Fulford), who was the Area IV support team member for language arts, observed Irvin's classroom performance. Irvin did not have any lesson plans. Fulford did not see a lot of teacher created materials in the classroom, and the classroom lacked a print rich environment. Irvin's questions to the students did not include enough "high order" questions. The class was too noisy.

    
    

40. On December 2, 1994, Dorothy Kelsey (Kelsey), a specialist in Pre- K/early intervention observed Irvin. Ms. Kelsey noted inappropriate activities being offered to the students such as dittos, rote memorization in the math lesson with no hands on activity, and reading and showing a small book in a group setting so that some of the children were unable to see the book. The classroom lacked well organized learning centers and did not have a print rich environment.

    
    

41. On December 9, 1994, Garrett observed Irvin teach a concept. Irvin continued to ask for unison responses and posed multiple questions. Based on the codes on the evaluation form used by Garrett, Irvin's teaching performance was not satisfactory during the observation.

    
    

42. On December 9, 1994, Irvin received a midyear evaluation of her performance as a classroom teacher identifying the following areas which needed to be improved and rating her overall performance as unsatisfactory:

    1. Management of Student Control

    2. Instructional Organization and Development

    3. Presentation of Subject Matter

    4. Demonstrates Ability to Plan Effectively

    5. Demonstrates Ability to Evaluate Instruc- tional Needs

       
       

43. Irvin was still unable to manage the students' conduct. She failed to make lesson plans, resulting in her not being prepared to teach lessons. She was not following the kindergarten checklist, which is a list of objectives that the students should be able to meet at the end of the school year. Based on testing, it was determined that a large number of the students in Irvin's class were not working on the level that they should have been. It appeared to Garrett that some of the students in Irvin's class were "falling through the crack" and would not meet the objectives on the kindergarten checklist.

    
    

44. Irvin had made improvement in the area of classroom climate. However, for this evaluation Irvin was rated unsatisfactory in the area of Demonstrates Ability to Evaluate Instructional Needs because she was not able to incorporate the kindergarten checklist in her lesson planning. The area of Demonstrates Ability to Evaluate Instructional Needs deals with the ability to tailor the instruction to meet the needs of the students. Thus, Irvin ended up with five areas of concern for her mid-year evaluation. Garrett recommended that Irvin remain on the PDP.

    
    

45. Irvin disagreed with the December 1994 evaluation.

    
    

46. Irvin was placed on her second PDP in January, 1995 for the purpose of providing her assistance in correcting the deficiencies listed on mid-year evaluation. The dates listed for the timeline for the PDP were from January through March, 1995. Irvin was observed during the time frames set forth in the second PDP.

    
    

47. The School District received a letter dated January 12, 1995, from Dr. Diaz, informing the School District that Irvin had ADD and was successfully taking medication. The doctor stated:

    
    

    This disability will continue and is chronic. Disabilities will be noted in terms of ability to concentrate, organize and respond to change. Working in a quiet environment undistracted is helpful. Functioning in the school district with an aide is helpful as well as understanding the disorder in terms of response to changes in curriculum or responsibilities.

    
    

48. On January 20, 1995, Pender observed Irvin. The students were divided into three groups. One of the groups was working at a table with manipulatives, was very noisy and was not directly supervised. Irvin asked her daughter who was helping her that day to sit with the noisy group. The group continued to be noisy and distracting to the other students. It was chaotic when the groups switched from one station to another. There was no connection of skills or concepts among the three stations during the class period. Irvin was reading the students Mother Goose Rhymes, which was appropriate for that grade level, but the noise level was so high that very little learning was going on. In comparing his first observation with his second observation, Pender opined that Irvin's ability to manage the classroom had not improved but was worse.

49. On February 1, 1995, an assistance review meeting was held. The letter from Dr. Diaz had been given to Louis Haddad, the School District's Coordinator of Employee Relations and Services. Irvin was told that Mr. Haddad needed to have a list of the specific accommodations that were being requested. Irvin indicated that she was going to another doctor to get the list. Irvin had rearranged her room and modified her lesson plans. She had been working with Fulford. Irvin was scheduled to attend three workshops: Management of Student Conduct, Presentation of Subject Matter/Planning, and an inservice session on whole language. Irvin advised the members of the meeting that she was pleased with the assistance and the progress being made.

    
    

50. On February 10, 1995, Gray observed Irvin in the classroom. Irvin spent ten minutes taking up money for various activities and collecting valentines. There was a show and tell with all the students. Irvin went to the calendar and indicated that the day was Friday. Nine students were taken to a table to work with the aide. The remaining nineteen students were talking and rolling on the floor. Instead of supervising the noisy children, Irvin helped the aide set up the work station for the nine students. The class became so noisy at one point that when Irvin was asked by the aide how many cards each child was to have, Irvin replied, "Sorry, I can't hear you." Irvin put eleven children at a table by themselves to draw a picture about weather, while Irvin began to teach the eight remaining children. During the 30 minute observation period, no teaching occurred for the first 26 minutes. During the observation, from 7 to 19 students were off task at various times.

    
    

51. On February 14, 1995, Garrett observed Irvin's classroom. She went to the classroom early in the morning but the class was having a valentine party. She returned around 10:00 a.m. and observed Irvin and the students singing songs. Irvin did use her behavior management plan during the observation.

    
    

52. The determination of whether a particular teacher should be recommended for termination based on incompetency is the responsibility of the principal of the school at which the teacher works.

    
    

53. At the end of the day on February 14, 1995, Garrett met with Irvin and advised Irvin that she was going to recommend that Irvin not be reappointed. By letter dated February 14, 1995, Garrett advised the superintendent of schools that Irvin had not corrected her performance deficiencies and recommended that Irvin not be reappointed for the 1996 school year. The letter was sent according to a School District requirement that principals send notice regarding teacher termination to the superintendent sometime during February. During the 1994-1995 school year, the School District established February 14 as the date by which the School District needed to receive notice regarding teachers possibly not being reappointed for the next school year.

    
    

54. The other observers on the PDP team agreed with Garrett's assessment that Irvin was not competent.

    
    

55. On February 20, 1995, Irvin made an office visit to see Dr. Helen Baker (Baker), a licensed mental health counselor. Diaz had referred Irvin to Baker for counseling. Irvin requested assistance from Baker in coming up with specific accommodations relating to her ADD which she could request from the School District.

    
    

56. On March 1, 1995, Burdsall observed Irvin. Burdsall noted that the classroom environment had improved. Irvin had some lesson plans but was not

    following the format that Gray had given her. Irvin did not completely follow her lesson plan during the observation period. Irvin was still not using all the elements that are necessary in teaching a lesson and was not teaching concepts by giving definitions, examples and nonexamples. Burdsall suggested that Irvin interact more with the students by asking comprehensive questions, both high and low order.

    
    

57. On March 2, 1995, Irvin received an annual evaluation rating her classroom performance unsatisfactory and identifying the following areas which needed improvement:

    
    

    1. Management of Student Conduct

    2. Instructional Organization and Development

    3. Presentation of Subject Matter

    4. Demonstrates Ability to Plan Effectively

    5. Demonstrates Ability to Evaluate Instruc- tional Needs

       
       

       In developing the evaluation, Garrett factored in her formal and informal observations of Irvin as well as the observations of the members of the Professional Development Plan's assistance team.

       
       

58. Irvin disagreed with the content of the March 2, 1995, evaluation.

    
    

59. By letter dated March 10, 1995, the superintendent of schools notified Irvin that she had failed to correct the deficiencies noted by the principal and that her current classroom performance was unsatisfactory. Irvin was informed that her employment would end on June 16, 1995, and that she would not be reappointed for the 1996 school year.

    
    

60. On March 19, 1995, Garrett received a letter from Helen Baker of Cape Counseling Services of Southwest Florida. After having seen Irvin two times Baker suggested the following accommodations for Irvin:

    
    

    1. Allow for changes to occur at a slower pace and when change is indicated be precise as to what is needed in the new situation.

    2. Have a clear workable curriculum.

    3. Have only one or two persons involved in giving guidance to Irvin and preferably a

       person with experience with the dynamics of ADD.

    4. Do not send conflicting messages in assisting Irvin.

    5. Place carpets or other materials to soften the sound in the classroom.

    6. Do not allow public announcements through electronic devices to interrupt during class.

    7. Leave Irvin messages in her mailbox for

       her to focus on when she has time to orient to them.

    8. Present written material on student behavior to Irvin one item at a time in a different manner.

    9. Allow Irvin timeout from her classroom so that she can extract herself from the over stimulation of the classroom.

    10. Provide Irvin with a full time aide who is aware of ADD behavior.

61. The School District had made accommodations to Irvin prior to the letter from Dr. Baker. Irvin was allotted more aide time than any other kindergarten teacher. Usually different teacher assistants came to the teachers at different times of the week. Irvin requested that she keep the same teacher assistant. Garrett accommodated Irvin by allowing her to have the same assistant for the rest of the day and for the rest of the week.

    
    

62. Belle Glade had a kindergarten extension room where kindergarten teachers are allowed to take their students twice a week, allowing the children to work with hands-on skills and activities. Two different groups would come into the extension room two different times of the day. Irvin felt that was too much movement for her and requested that she be allowed to go to the extension room only once with the same students at the same time. Garrett made the accommodation for Irvin.

    
    

63. Irvin indicated that the format of the lesson plans for the extension schedule was difficult to follow and suggested that she be allowed to color code her lesson plans. Garrett allowed the accommodation.

    
    

64. Irvin was provided the Florida Performance Measurement System otherwise known as the blue book. The purpose of the book is to provide assistance for effective teaching. Additionally, in September, 1994, Garrett provided Irvin with mini packets which broke the material down to a smaller scale so that Irvin would not have to try to digest the blue book at one time. A month later, Garrett supplied Irvin with additional reference materials. Irvin was provided training in formats other than written material. She attended workshops and observed other kindergarten teachers.

    
    

65. In the area of lesson planning, Irvin met with the kindergarten chairperson one-on-one for assistance with the lesson plans. Garret also met with Irvin and the kindergarten chairperson to provide assistance to Irvin on the lesson planning. Irvin was provided with copies of lesson plans that Garrett deemed to be sufficient.

    
    

66. Irvin had been provided with the kindergarten checklist. Based on the checklist Irvin should have been able to determine what things that the kindergarten students should be taught during the school year. Thus, Irvin was provided with a clear workable curriculum.

    
    

67. There were seven kindergarten teachers at Belle Glade during the 1994- 1995 school year. The kindergarten supplies for the 1994-1995 had been ordered based on number of kindergarten teachers the previous year, six. Thus, the supplies which were ordered for six teachers had to be divided among seven teachers. Irvin did not receive a math kit which Pender had suggested using until almost the end of the 1994-1995 school year.

    
    

    CONCLUSIONS OF LAW

    
    

68. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

69. The School District has the burden of establishing by a preponderance of the evidence that there is just cause to terminate Irvin's employment as a school teacher. See Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3rd DCA 1990) and Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990. The School Board must establish that Irvin is incompetent. The

    termination for reasons of incompetency of teachers who hold a professional services contract is controlled by Sections 231.36 and 231.29, Florida Statutes.

    
    

70. Section 231.36 Florida Statutes, provides:

    
    

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to

    s. 231.17 or employed pursuant to s. 231.175 and shall be entitled to and shall receive a written contract as specified in Chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain a provision for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty,

    or conviction of a crime involving moral turpitude.

    * * * *

    (3)(e) A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by

    1. 231.29(4), charges the employee with unsatis- factory performance as determined under the provisions of s. 231.29 and notifies the employee in writing, no later than 6 weeks prior to the end of the postschool conference period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment (which shall be granted for an additional year in accordance with the provisions in subsection (1)). Except as otherwise hereinafter provided, this action shall not be subject to the provi-

       sions of chapter 120, but the following procedures shall apply:

       1. On receiving notice of unsatisfactory performance, the employee, on request, shall be accorded an opportunity to meet with the superintendent or his designee for an informal review of the determination of unsatisfactory performance.

       2. An employee notified of unsatisfactory performance may request an opportunity to be considered for a transfer to another appropriate position, with a different supervising admini- strator, for the subsequent year of employment.

       3. During the subsequent year, the employee shall be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. The employee shall also be evaluated periodically so that he will be kept apprised of progress achieved.

       4. Not later than 6 weeks prior to the close of the postschool conference period of the subsequent year, the superintendent, after receiving and reviewing the recommendation

    required by s. 231.29(4), shall notify the employee, in writing, whether the performance deficiencies have been corrected, the super- intendent may notify the school board and the employee, in writing, that the employee shall not be issued a new professional service contract; however, if the recommendation of the superintendent is not to issue a new professional service contract, and if the employee wishes to contest such recommen- dation, the employee will have 15 days

    from the receipt of the superintendent's recommendation to demand, in writing, a hearing. In such hearing, the employee may raise as an issue, among other things, the sufficiency of the superintendent's charges of unsatisfactory performance.

    
    

71. The School District has established by a preponderance of the evidence that Irvin was terminated for just cause. Irvin was unable to perform her teaching duties competently.

    
    

72. Irvin argues that she did not have a full year to remediate her deficiencies. Section 231.36(3), Florida Statutes, requires that the teacher be given an opportunity to remediate the deficiencies in the subsequent year and requires that if in that subsequent year the teacher does not perform satisfactorily that the teacher be notified no later than six weeks prior to the close of the postschool conference period that the teacher will not be reappointed. Based on the statute, it was not contemplated that a teacher be given a full year to remediate the deficiencies. The teacher should be given sufficient time during the subsequent year to correct the deficiencies but there also has to be sufficient time to administratively process the notice of termination. The midyear and annual evaluations were done in the same time frame in 1994-1995 as they were in 1993-1994, December and March, respectively. It is reasonable that after six months of providing assistance and observing Irvin, the school principal should be able to determine whether a teacher has performed satisfactorily for the year.

    
    

73. Irvin argues that the School District did not provide accommodations for Irvin and that if it had that she would have been able to perform satisfactorily. The greater weight of the evidence does not support this argument. In January, 1996, Diaz wrote to the school board, stating that working in a quiet environment and having an aide would be helpful to Irvin. Irvin did have an aide and accommodations had been made to keep the same aide with Irvin all the time. Irvin was given more time with an aide than any of the other kindergarten teachers.

    
    

74. As far as working in a quiet environment is concerned, the noise in the classroom was due to Irvin's inability to control the behavior of the students. Even with the assistance of an aide, Irvin was unable to control her classroom.

    
    

75. The School district did make accommodations for Irvin as it related to change as demonstrated by the scheduling for the kindergarten extension room. Prior to the date that Irvin was notified that she would not be reappointed, the School District had provided Irvin with the accommodations that she requested.

76. The letter from Baker did not reach the School District until after Irvin had been notified of the termination. The School District had implemented many of the accommodations suggested by Baker. The accommodation of the scheduling of the extension classroom and the color coding of the lesson plan dealt with changes. Irvin had been provided with a clear workable curriculum when she was provided with the kindergarten checklist. Irvin's problem was with her inability to plan and carry out the activities needed to achieve the skills set out in the checklist.

    
    

77. Baker also suggested that written materials be presented one item at a time and in different ways. If Irvin had a problem with being given several books at one time all she had to do was read and deal with one book at a time, regardless of the number of books she was given. Additionally, Irvin was provided different training formats. She was given written materials, sent to workshops, given one-on-one assistance with the lesson plans, provided opportunities to observe other kindergarten teachers, and given feedback after being observed.

    
    

78. Baker suggested that carpet be put down to soften the noise. Based on the observations of the PDP team members, the lack of carpet was not the problem, but the inability of Irvin to control the behavior of the students which resulted in the noise level being so high.

    
    

79. Based on the PDP team's observations, it does not appear that the public announcements from the intercom contributed to Irvin's inability to handle the students and to teach lessons. Irvin testified that she would lose her train of thought because of the intercom but there was no evidence that this occurred during the observations.

    
    

80. Overall the School District made accommodations for Irvin as they were requested. Thus, Irvin was not able to perform her job satisfactorily with accommodations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Margaret Irvin's

employment with the Palm Beach School District.

DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 19th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2073

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-4: Accepted.

2. Paragraphs 5-16: Accepted in substance.

3. Paragraph 17: Accepted.

4. Paragraphs 18-23: Accepted in substance.

5. Paragraph 24: Accepted.

6. Paragraphs 25-26: Accepted in substance.

7. Paragraph 27: Accepted.

8. Paragraph 28: Accepted in substance.

9 Paragraphs 29-30: Rejected as subordinate to the facts found.

1. Paragraph 31: Accepted.

2. Paragraph 32: Accepted in substance.

3. Paragraph 33: Rejected as subordinate to the facts found.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-18: Accepted.

2. Paragraphs 19-29: Accepted in substance.

3. Paragraphs 30-36: Accepted.

4. Paragraphs 37-39: Accepted in substance.

5. Paragraph 40: The first two sentences are accepted. The last sentence is rejected to the extent that it implies that the timeline was not followed. Irvin was observed during the times set forth in the PDP with the exception of the evaluation by Kelsey which took place on March 9.

6. Paragraph 41: Accepted in substance.

7. Paragraph 42: The first two sentences are accepted in substance. The last sentence is accepted to the extent that the workshop dealt with planning but rejected to the extent that it implies that if Irvin had had the workshop earlier it would have helped her. When Burdsall observed Irvin on March 1, 1995, Irvin was not using the lesson planning format that Gray had recommended.

8. Paragraph 43: Accepted in substance.

9. Paragraph 44: Rejected as irrelevant.

10. Paragraph 45: The first sentence is accepted. The second sentence is subordinate to the facts found because Irvin was given the kindergarten checklist and she knew that she was to incorporate those objectives in her lessons.

11. Paragraph 46: Rejected as subordinate to the facts found. Irvin had not remediated her deficiencies by March 10.

12. Paragraph 47: The first sentence is rejected as irrelevant. Irvin had taught kindergarten in summer school. (TR 622) The last sentence is rejected as not supported by the record as it deals with the use of the term "colored." The gist of Garrett's testimony was that she considered not only her observations in recommending termination but all the information from the observers and the assistance that had been provided to Irvin.

13. Paragraphs 48-49: Accepted in substance.

14. Paragraphs 50-51: Accepted in substance to the extent that Irvin had made some improvement during the 1994-1995 school year but rejected to the extent that it implies that she had remediated her deficiencies.

15. Paragraph 52: Accepted in substance that the material was appropriate but rejected to the extent that it implies that Pender thought Irvin's performance was satisfactory.

16. Paragraphs 53: Accepted in substance that singing songs is an appropriate activity for kindergarten children, but not necessarily that the activities that the students were engaged in constituted the teaching of a lesson. The last sentence is accepted.

1. Paragraph 54: Rejected as not supported by the greater weight of the evidence.

2. Paragraph 55: The first sentence is accepted. The second sentence is rejected as not supported by the record. Irvin presented a concept but whether she was teaching it could not be determined because of the unison responses and the failure of the students to line up appropriately in making the parade pattern. The third sentence is accepted in substance as to presenting a concept but rejected to the extent that it could be determined that the students actually learned a concept. The last sentence is accepted.

3. Paragraph 56: The first sentence is accepted in substance. The first half of the second sentence is accepted to the extent that Irvin went from having no lesson plans to having some lesson plans that were acceptable some of the time. The last sentence is rejected as not supported by the record. According to Burdsall's last observation, Irvin was not following the format set up by Gray.

1. Paragraph 57: Accepted.

2. Paragraph 58: Accepted in substance.

3. Paragraph 59: The first sentence is accepted to the extent that Irvin received the same amount of supplies as did the other kindergarten teachers and that she was impacted to the same extent as the other teachers but rejected to the extent that it implies the shortage of supplies caused Irvin to be incompetent. The remainder is accepted in substance.

4. Paragraph 60: Accepted in substance.

5. Paragraph 61: The first two sentences are rejected as not supported by the greater weight of the evidence. The last sentence is rejected to the extent that although the advice appeared to be conflicting, it was not because the problem was that Irvin could not control her classroom behavior with the techniques that had been suggested. It was not that the techniques were all inappropriate but that Irvin just could not seem to implement them.

6. Paragraph 62: Rejected as not supported by the record. The observers were focusing on having Irvin make lesson plans, follow the lesson plans, and teach concepts. Irvin had been doing none of these things.

7. Paragraph 63: Rejected as subordinate to the facts found. Apparently it was normal to have a housekeeping center in the classroom and Irvin had asked Fulford if it was okay to remove it. Kelsey did not see a housekeeping center which is normally a part of the classroom and commented on it. Irvin could have very easily explained to Kelsey that she had permission to remove the housekeeping center but Irvin chose not to tell Kelsey.

8. Paragraph 64: Accepted that classroom climate was dropped but rejected that that was the only area in which Burdsall gave specific things to do.

9. Paragraphs 65-67: Accepted to the extent that Irvin, like the other

   kindergarten teachers, was given a draft language arts curriculum which would be used in the upcoming year. Rejected to the extent that it implies Irvin was not given a clear idea of what the curriculum should be for the kindergarten because she was given the kindergarten checklist which spelled out what the children should learn in kindergarten.

10. Paragraph 68: Accepted in substance but not incorporated in the findings of fact. However, this does not mean that Burdsall was against praising good behavior as well.

11. Paragraph 69: The first two and the last sentences are accepted in substance but not incorporated. The third sentence is accepted in substance but not incorporated. However, it should be noted that Kelsey also concluded that a formal behavior management system would not be necessary if there was proper planning and organizing.

12. Paragraphs 70-71: Accepted in substance but not incorporated.

13. Paragraph 72: Accepted in substance to the extent that the management system that Irvin was using did not accentuate the positive behavior because there were only two categories, a happy face and a sad face. By adding a neutral category, Irvin could reward the student by moving his name to the happy category from the neutral category.

14. Paragraph 73: Accepted in substance.

15. Paragraph 74: The first sentence is accepted to the extent that in Malone's testimony she was emphasizing that Irvin had a management behavior system posted on the wall but she was not using it and was turning the lights on and off, which was not working, as a method of controlling the behavior of the children. The second sentence is accepted in substance but not incorporated.

16. Paragraphs 75-76: Accepted in substance but not incorporated. The context of the statements is that Irvin was not in control of her classroom which resulted in the students being very noisy and off-task.

17. Paragraph 77: Accepted in substance.

18. Paragraph 78: Rejected as unnecessary.

19. Paragraph 79: Accepted in substance.

20. Paragraph 80: The first sentence is accepted in substance. The remainder is rejected as not supported by the evidence. The assistance provided to Irvin included accommodations which were requested by Irvin prior to the notification of her termination.

21. Paragraph 81: Accepted in substance.

22. Paragraph 82: The first and second sentences are accepted in substance. The third sentence is rejected as subordinate to the facts found because even with the accommodations that Irvin had requested and those listed by Diaz, Irvin was not able to satisfactorily perform her job. The fourth sentence is rejected as subordinate to the facts found.

23. Paragraphs 83-84: Accepted in substance.

24. Paragraph 85: Rejected as unnecessary.

25. Paragraph 86: Accepted in substance that Irvin had ADD and that her behavior was symptomatic of ADD.

26. Paragraph 87: The first sentence is accepted to the extent that Diaz believed it but rejected to the extent that the evidence demonstrated that with accommodations such as an aide Irvin still could not perform satisfactorily. The second and third sentences are rejected as subordinate to the facts found.

27. Paragraphs 88-89: Accepted in substance.

28. Paragraphs 90-91: Rejected that there was not a clear workable curriculum in place. Although SADI, was being phased out and whole language was being phased in, there did exist a kindergarten checklist which essentially provided what skills had to be taught during the kindergarten year.

29. Paragraph 92: Accepted.

30. Paragraph 93: The first sentence is accepted. The second sentence is rejected to the extent that it implies that the School District did not accommodate Irvin in this area.

31. Paragraph 94: Accepted.

32. Paragraphs 95-96: Rejected to the extent that the information was in conflict. It was apparent that to a great extent Irvin was unable to use the behavior management system effectively whether she was emphasizing the negative or the positive.

33. Paragraph 97: Rejected as subordinate to the facts found. The point to be learned from the observations was that Irvin did not have control of her

    classroom or her aide. Irvin should not have had to go to help the aide but the control of the classroom was the ultimate responsibility of Irvin so the misconduct had to be stopped at some point whether it was by Irvin or by the aide.

34. Paragraphs 98-116: Rejected as subordinate to the facts found that accommodations were made for Irvin.

35. Paragraph 117: Accepted.

36. Paragraph 118: Rejected as subordinate to the facts found.

COPIES FURNISHED:

Darren K. Edwards, Esquire Palm Beach County School Board 3318 Forest Hill, Boulevard

West Palm Beach, Florida 33406-5813

Thomas L. Johnson, Esquire

202 West Cardy Street Tampa, Florida 33606

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. Bernard Shulman, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. 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: 95-002073

Orders for Case No: 95-002073