STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-1469

)

HELEN F. RUBY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 9, 1997, February 23 and 24, 1998, and by video teleconference on March 30, 1998, at Miami, Florida, before Errol

H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Twila Hargrove Payne, Esquire

School Board of Dade County

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade

2929 Southwest 3rd Avenue, Suite 1

Miami, Florida 33129 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent's professional service contract should be re-newed.

PRELIMINARY STATEMENT

By letter dated March 10, 1997, the Superintendent of Schools for the Dade County School Board (Petitioner) notified Helen F. Ruby (Respondent) that, among other things, he was recommending to the Petitioner that Respondent's professional service contract not be re-issued due to deficiencies, of which she was notified on March 22, 1996, not being corrected. By letter dated March 17, 1997, Respondent's representative requested a formal hearing on behalf of Respondent. On March 25, 1997, this matter was referred to the Division of Administrative Hearings. On April 4, 1997, the parties filed a stipulation waiving the 45-day hearing requirement of Subsection 231.36(3)(e)4, Florida Statutes.

On September 29, 1997, Petitioner filed a Notice of Specific Charges of Unsatisfactory Performance. Subsequently, Petitioner was permitted to amend its specific charges, and Petitioner's Amended Notice of Specific Charges filed on December 5, 1997, was accepted as the charging document. The parties filed a pre- hearing stipulation.

At the hearing, Petitioner presented the testimony of 14 witnesses and entered 26 exhibits into evidence. Respondent presented the testimony of 4 witnesses and entered 2 exhibits into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set for more than 10 days following the filing of the transcript.

The parties were subsequently granted an extension for the filing of their post-hearing submissions. The parties filed post- hearing submissions which have been duly considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board, charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes.

2. At all times material hereto, Helen F. Ruby (Respondent) was employed with the Petitioner as a teacher pursuant to a professional service contract (PSC). Respondent has been employed with Petitioner as a PSC teacher for approximately 15 years.

3. Respondent is a member of the United Teachers of Dade (UTD). As a member of UTD, Respondent is bound by all the provisions of the labor contract between Petitioner and UTD. The UTD contract requires the utilization of the Teacher Assessment and Development System (TADS) to evaluate the performance of teachers.

4. All teachers employed by the Petitioner are evaluated

   pursuant to the TADS, which is an objective instrument used to observe minimal teaching behaviors. The TADS instrument evaluates teacher classroom performance in six categories which are preparation and planning; knowledge of subject matter; classroom management; techniques of instruction; teacher-student relationships; and assessment techniques. A seventh category, referred to as professional responsibility, reflects the duties and responsibilities of a teacher in complying with the Petitioner's rules, contractual provisions, statutory regulations, site directives, and all policies and procedures relating to record-keeping and attendance. This system of evaluation records deficiencies observed during the observation period and provides the prescription for performance improvement.

5. At all times material hereto, the document used to evaluate Respondent's performance was the TADS document, more specifically, TADS, Classroom Assessment Instrument (CAI). The TADS CAI contained the six categories, not the seventh, in evaluating Respondent's performance.

   1995-96 School Year

   
   

6. During the 1995-96 school year, Respondent was assigned to John F. Kennedy Middle School (JFK) to teach Language Arts at the seventh grade level.

7. On November 13, 1995, Respondent was formally observed by JFK's Assistant Principal. Respondent was found unacceptable in classroom management. As a result, she was placed on

   prescription and was prescribed activities to help her overcome her deficiencies in classroom management. The prescription, which includes the prescriptive activities and a date certain for completion or submission of the prescriptive activities, is recorded on the TADS Record of Observed Deficiencies/Prescription for Performance Improvement (ROD).

8. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities on the ROD. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document; but Respondent did not provide a response on the TADS document to the noted deficiencies.

9. On December 15, 1995, a mid-year Conference-for-the- Record (CFR) was held. Present at the mid-year CFR were the Principal, Assistant Principal, Respondent, and a UTD representative. During the mid-year CFR, Respondent's prescription status was addressed, due to her unsatisfactory performance in classroom management, and her future employment status with Petitioner. Respondent was provided an opportunity to address the deficiencies and concerns noted in the mid-year CFR; however, Respondent did not provide a response.

10. A written summary of the mid-year CFR, dated January 8, 1996, was prepared by the Principal. Respondent received a copy

    of the summary.

    
    

11. On March 11, 1996, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management, which were recorded on the ROD.

12. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that

    she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies. At times during the post-observation conference, Respondent was argumentative and resistant.

13. On March 21, 1996, a CFR was held. Present at the CFR were the Principal, an Assistant Principal, Respondent, and two UTD representatives. During the CFR, Respondent's unacceptable performance in the classroom, resulting from the unacceptable observations of November 13, 1995, and March 11, 1996, was discussed. Respondent was notified that a second unacceptable consecutive summative would result in an external review and that a recommendation to not renew her professional service contract may be made.

14. A written summary of the CFR, dated March 22, 1996, was prepared by the Principal. A copy of the CFR summary was provided to Respondent.

15. The evidence is insufficient to conclude that a summative observation form was provided to Respondent or Respondent’s UTD representatives.

16. By letter dated March 22, 1996, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that she was being charged with unsatisfactory performance in classroom management, techniques of instruction, teacher-student relationships, and assessment techniques. Further, Respondent was notified that, if her performance deficiencies were not corrected during the 1996-97 school year, her employment with the Petitioner may be terminated; and that the assessment of her performance would continue throughout the remainder of the school year.

17. By letter dated March 28, 1996, the Petitioner’s Associate Superintendent of Schools notified Respondent, among other things, that she had not been recommended for renewal of her PSC and that the Petitioner had acted on the recommendation to not renew her PSC. Further, Respondent was notified, among other things, that her performance would continue to be assessed throughout the 1995-96 and 1996-97 contract school years; and that, unless her performance deficiencies were remediated, her employment with the Petitioner would terminate at the close of

    the 1996-97 contract school year, with her last day of employment being June 14, 1997.

18. On April 29, 1996, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in classroom management and techniques of instruction. As a result, she was placed on prescription and was prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD.

19. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified, among other things, that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies.

20. As a result of Respondent receiving three unacceptable observations during the 1995-96 school year, JFK’s Principal requested an external review of Respondent’s classroom performance.

21. An external review is a formal observation which requires an on-site administrator and an off-site region or district office administrator to be observers, a two-on-one observation. The observers are both in the teacher’s classroom

    at the same time; they observe the same lesson plan; and they rate the TADS CAI items independently, using their own judgment.

22. After the two observers independently assess the teacher’s classroom performance, they meet and collaboratively prepare a prescriptive record of observed deficiencies which includes their observations substantiating the deficiencies. The prescription is recorded on the ROD.

23. Written notice must be provided to the teacher that an external review will be conducted.

24. The CFR summary dated March 22, 1996, provided Respondent with notice that an external review would be conducted if a condition precedent occurred, which was the occurrence of a second unacceptable consecutive summative. There is no dispute that the formal observations conducted on November 13, 1995, and March 11, 1996, comprise the first two consecutive TADS CAI observations; and that the formal observations conducted on March 11, 1996, and April 29, 1996, comprise the second two consecutive TADS CAI observations. There is disagreement as to whether the observations comprise the first unacceptable consecutive summative and the second unacceptable consecutive summative, respectively; however, a finding is so made and, therefore, the condition precedent was satisfied. Moreover, a finding is made that the mid-year CFR summary dated March 22, 1996, provided Respondent notice of the external review.

25. On May 30, 1996, an external review of Respondent’s

    classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in preparation and planning, classroom management, techniques of instruction, teacher-student relationships, and assessment techniques.

26. Each observer rated Respondent independently on the TADS CAI. The two observers did not discuss their ratings of Respondent prior to completing the TADS CAI rating.

27. After performing their independent ratings, the two observers discussed Respondent’s performance. Neither observer changed their ratings during or after the discussion.

28. As a result of Respondent receiving an unacceptable external review, the two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD.

29. After an external review, the on-site observer has the responsibility of conducting the post-observation conference and preparing and issuing the prescription. In accordance therewith, the Assistant Principal held a post-observation conference with Respondent and discussed the noted-deficiencies and the prescriptive activities.

30. On June 14, 1996, Respondent was placed on prescription in the category of professional responsibility, the seventh

    category of TADS, by the Principal. Respondent was given prescriptive activities to assist her to overcome her deficiencies in professional responsibility, which were recorded on the ROD. The Principal held a conference with Respondent to discuss the prescription.

31. Respondent’s annual evaluation was conducted on

    
    

    June 14, 1996. During the 1995-96 school year, the Principal and her staff provided Respondent with assistance to overcome the noted deficiencies. However, Respondent’s classroom performance remained unacceptable. Respondent’s overall performance was found unacceptable in the categories of preparation and planning, classroom management, techniques of instruction, teacher-student relationships, assessment techniques, and professional responsibility. Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1995-96 school year.

    1996-97 School Year

    
    

32. JFK had a new principal for the 1996-97 school year. The Principal was informed as to Respondent’s prescription status. The Principal met with Respondent, reviewed the prescription with her, and offered to assist Respondent with the prescriptive activities. Respondent indicated to the Principal that she needed no assistance.

33. By memorandum dated September 24, 1996, the Principal notified Respondent that, pursuant to the prescription,

    Respondent had failed to submit the prescriptive activities which were due on September 20, 1996, and that, therefore, she was in noncompliance with the prescription. Respondent was also notified that, if she failed to submit the prescriptive activities by September 25, 1996, the professional responsibility (category seven) prescription would be extended for noncompliance. Finally, the Principal provided Respondent duplicates of the June 14, 1996, prescription and TADS documents. Respondent failed to complete the prescriptive activities by September 25, 1996.

34. On October 3, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the CFR, Respondent’s prescriptive status, noncompliance with the prescription and administrative directives, and future employment status with Petitioner were discussed. The June 14, 1996, prescription was extended to November 4, 1996, and Respondent was advised that her failure to complete the prescriptive activities by the prescribed deadline would be considered insubordination.

35. A written summary of the CFR was prepared by the Principal. Respondent was provided a copy of the summary.

36. On October 8, 1996, approximately one week after the CFR, Respondent was formally observed by the Principal. Respondent was found to be unacceptable in techniques of instruction and assessment techniques. As a result, she was

    placed on prescription and was prescribed activities to help her overcome her deficiencies in techniques of instruction and assessment techniques, which were recorded on the ROD.

37. After the formal observation, the Principal held a post-observation conference with Respondent at which the Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies.

38. On October 14, 1996, a memorandum from the Principal was submitted to Respondent which notified Respondent that she had failed to submit all prescriptive activities which were due on October 4, 1996, in accordance with the prescription dated June 6, 1996. Respondent was also notified that the required prescriptive activities must be submitted by October 15, 1996; and that, if they were not, the prescription of June 6, 1996, would be extended due to noncompliance.

39. On December 16, 1996, a mid-year CFR was held. Present at the mid-year CFR were the Principal, the Assistant Principal, Respondent, and the UTD steward. During the mid-year CFR, Respondent’s noncompliance with school site directives, noncompliance with Petitioner’s rules, prescriptive status, and future employment status with Petitioner were discussed. Additionally, the assistance provided Respondent to assist her in

    improving her classroom performance was reviewed.

    
    

40. During the mid-year CFR, Respondent was advised that she was in her second year of unacceptable performance status and that she had failed to remediate her noted deficiencies. She was also advised that, if she failed to remediate the noted- deficiencies by the end of the 1996-97 school year, a recommendation would be made for the non-renewal of her PSC, which would be reported to the Florida Department of Education.

41. Additionally, during the mid-year CFR, Respondent was advised that to remediate the noted deficiencies she must receive two consecutive acceptable summative decisions, which would require three formal observations. Respondent was further advised that, if she received two consecutive unacceptable summatives or four formal observations with no pattern of two consecutive acceptable or unacceptable summatives, an external review would be conducted.

42. A written summary of the mid-year CFR was prepared by the Principal. Respondent received a copy of the summary.

43. On February 6, 1997, Respondent was formally observed by the Assistant Principal. Respondent was found unacceptable in classroom management and techniques of instruction. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in classroom management and techniques of instruction, which were recorded on the ROD. Respondent was required to complete the prescriptive activities

    by February 26, 1997.

    
    

44. After the formal observation, the Assistant Principal conducted a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. Respondent was notified that she had a right to write any explanation that she may have on the TADS document or an appendage thereto; however, Respondent did not provide a written response to the noted deficiencies.

45. Respondent failed to complete the prescriptive activities by February 26, 1997. By memorandum dated March 4, 1997, the Assistant Principal notified Respondent, among other things, that she was in noncompliance with the prescription because of her failure to complete the prescriptive activities by February 26, 1997; and that she had until March 5, 1997, to submit the prescriptive activities.

46. On February 24, 1996, a CFR was held. Present at the CFR were the Principal, the Assistant Principal, Respondent, and a UTD steward. During the CFR, among other things, Respondent’s prescriptive status, unacceptable classroom performance, and noncompliance with school site directives were discussed. Respondent was advised that she had not remediated her deficiencies and was notified that, therefore, an external review was requested. Respondent was also notified that, if she did not remediate the noted-deficiencies, a recommendation would be made to terminate her employment with the Petitioner and not renew her

    PSC.

    
    

47. A written request for an external review was made by

    
    

    the Principal. Respondent received a copy of the request.

    
    

48. A written summary of the CFR was prepared by the Principal. A copy of the CFR summary was provided to Respondent, who was informed that she could provide a written response to the summary.

49. Although not required for PSC teachers, an interim evaluation is used to inform PSC teachers on prescription of the latest summative decision. Also, the interim evaluation notifies the PSC teacher that he/she may be in jeopardy of losing their PSC at the end of the school year.

50. On February 27, 1997, Respondent received an interim evaluation. She was found to be unacceptable in classroom management, techniques of instruction, and assessment techniques. The overall unacceptable interim evaluation was based on the compilation of the unacceptable formal observations of October 8, 1996, and February 6, 1997.

51. On March 7, 1977, Respondent was formally observed by JFK's Assistant Principal. Respondent was found to be unacceptable in preparation and planning, techniques of instruction, and assessment techniques. As a result, Respondent was placed on prescription and prescribed activities to help her overcome her deficiencies in preparation and planning, techniques of instruction, and assessment techniques, which were recorded on

    the ROD.

    
    

52. After the formal observation, the Assistant Principal held a post-observation conference with Respondent at which the Assistant Principal discussed the deficiencies and the prescriptive activities. The Assistant Principal offered to provide any assistance that Respondent requested to assist her to improve her performance.

53. The date for completion of the prescriptive activities was March 27, 1997. Respondent failed to timely complete the prescription, submitting the prescriptive activities on April 9, 1997.

54. By letter dated March 10, 1997, the Petitioner’s Superintendent of Schools notified Respondent, among other things, that the deficiencies noted in Respondent’s performance in the 1995-96 school year had not been corrected, that he would be recommending to the Petitioner that Respondent’s PSC not be re-issued, and that the Petitioner would act on his recommendation on March 19, 1997. Further, Respondent was notified that her performance would continue to be assessed for the remainder of her contract.

55. On March 19, 1997, the Petitioner acted on the Superintendent’s recommendation. The Petitioner decided not to renew Respondent’s PSC and not to reappoint Respondent to a teaching position.

56. On April 16, 1997, an external review of Respondent’s

    classroom performance was conducted by JFK's Principal (the on- site administrator) and by the Instructional Supervisor of the Division of Language Arts and Reading (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships.

57. Each observer rated Respondent independently on the TADS CAI.

58. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD.

59. After the external review, the Principal held a post- observation conference with Respondent. The Principal discussed the noted deficiencies and the prescriptive activities.

60. Subsequent to the post-observation conference, the Principal assisted and assigned school staff to assist Respondent to improve her classroom performance and with her prescriptive activities.

61. The date for completion of the prescriptive activities was May 9, 1997. Respondent completed the prescriptive activities on May 8 and 9, 1997.

62. On May 29, 1997, an external review of Respondent's

    classroom performance was conducted by JFK's Assistant Principal (the on-site administrator) and by the Petitioner's Regional Director (the off-site administrator). Both observers rated Respondent’s classroom performance on the TADS CAI as unacceptable in classroom management, techniques of instruction, and teacher-student relationships.

63. Each observer rated Respondent independently on the TADS CAI.

64. The two observers discussed and developed prescriptive activities to assist Respondent to overcome her deficiencies, which were recorded on the ROD. The two observers collaboratively prepared the prescriptive record of observed deficiencies and recorded the prescription on the ROD.

65. After the external review, the Assistant Principal held a post-observation conference with Respondent. The Assistant Principal discussed the noted deficiencies and the prescriptive activities.

66. Subsequent to the post-observation conference, the Principal again assisted and assigned school staff to assist Respondent to improve her classroom performance and her prescriptive activities.

67. The date for completion of the prescriptive activities was June 12, 1997. Respondent failed to timely complete the prescriptive activities, submitting them on June 13, 1997.

68. During the 1996-97 school year, Respondent failed to

    remediate the noted deficiencies.

    
    

69. Respondent’s annual evaluation was conducted on

    
    

    June 11, 1997. Respondent’s overall performance was found to be unacceptable in the categories of classroom management, techniques of instruction, and teacher-student relationships.

    Respondent had failed to remediate these unacceptable categories. Respondent received an overall unacceptable annual evaluation for the 1996-97 school year.

70. By letter dated July 15, 1997, the Petitioner's Office of Professional Standards notified Respondent, among other things, that her performance assessment record for the 1995-96 and 1996-97 school years had been transmitted to the Florida Department of Education. Respondent was further informed that her performance assessment record was transferred due to Respondent receiving two consecutive unsatisfactory annual evaluations and that she was being provided written notice that her employment with Petitioner was being terminated, not being renewed, or that the Petitioner intended to terminate, or not renew, her employment.

    CONCLUSIONS OF LAW

    
    

71. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

72. Section 230.23, Florida Statutes, provides in pertinent

    part:

    
    

    The school board, acting as a board, shall exercise all powers and perform all duties listed below:

    
    

    * * *

    
    

    (5) PERSONNEL.-Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:

    
    

    * * *

    
    

    (f) Suspension and dismissal and return to annual contract status.-Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in chapter 231.

73. Section 231.001, Florida Statutes, provides in pertinent part:

    Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees.

    
    

74. Section 231.09, Florida Statutes, provides in pertinent part:

    Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released

    from the contract by the school board.

    
    

75. Subsection 231.36(3), Florida Statutes, provides in pertinent part:

    1. A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by s. 231.29, charges the employee with unsatisfactory performance and notifies the employee of performance deficiencies as required by s. 231.29. . . .

    2. [T]he following procedures shall apply:

    
    

    * * *

    
    

    1. 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 or she will be kept apprised of progress achieved.

    2. 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, shall notify the employee, in writing, whether the performance deficiencies have been corrected. If so, a new professional service contract shall be issued to the employee. If the performance deficiencies have not been corrected, the superintendent 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 recommendation, the employee will have 15 days from 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. . . .

76. Article XIII of the labor contract (Contract) between UTD and the Petitioner, entitled "Evaluations," provides in pertinent part:

    INTRODUCTION

    
    

    * * *

    
    

    B. Employees are entitled to an evaluation which is fair, equitable, and impartial. The parties agree to the continuation of a developmental approach to improving teaching performance, using the TADS. In accordance with Florida Statutes, no disciplinary action shall be taken, based on incompetence in the absence of documentation and procedures required by TADS.

    
    

    * * *

    
    

    Section 2. General Procedures/Acountability

    
    

    Observations/assessments shall not be scheduled to occur during program reviews/audits by district or region office personnel.

    
    

    Any teacher whose performance is assessed unacceptable in any observation category shall be entitled to a plan of professional growth practices which shall include reasonable timeframes for implementation.

    The established teacher assessment/evaluation instrument and procedures shall be used for identification of any teaching deficiencies and the plan of appropriate professional growth practices. . . . The function of such practices is to assist the teacher in professional growth. . . . Teachers shall follow the growth practices required.

    Failure to implement required professional growth practices or to correct deficiencies for which professional growth was required shall constitute just cause for disciplinary action in accordance with the due process provisions in this Contract.

    Where an administrator has substantiated,

    through two formal observations, as stipulated above, that teaching is unacceptable in any of the observation categories, DCPS [Dade County Public Schools] may utilize diagnostic tests and assessment techniques to identify teaching weaknesses and strengths and to assist in selecting appropriate professional growth practices to improve teaching performance. The teacher shall cooperate with DCPS' efforts to diagnose any deficiency. Where teaching deficiencies are diagnosed as a result of tests or assessment techniques, DCPS shall require professional growth practices which shall be obligatory on the teacher.

    * * * Section 4. Teacher Assessment and

    Development System (TADS) Highlights

    
    

    * * *

    
    

    O. Compliance with Procedures

    
    

    Assessment/evaluation decisions shall be arrived at in compliance with all required procedures. Decisions arrived at, in violation of procedures, shall be rendered null and void, when identified by the Union in compliance with procedures established by the parties.

    
    

77. Article XXI of the Contract, entitled "Employee Rights and Due Process," provides in pertinent part:

    Section 1. Due Process

    
    

    * * *

    
    

    B. Suspension/Dismissal for Cause/Other Disciplinary Actions

    
    

    1. General Provisions

    
    

    * * *

    
    

    b. Any recommendation for suspension or dismissal based upon unacceptable teaching

    performance shall require that teaching deficiencies be documented on the observation/evaluation forms in compliance with the procedures of the DCPS evaluation process. Disciplinary action based on unacceptable teaching performance may not be taken against an employee in the absence of an official performance assessment conducted in accordance with procedures, guidelines, stipulations, and requirements as are included in any employee assessment system in effect at the time.

78. Petitioner demonstrated that it has complied with the statutory provisions and the provisions in the Contract, including the TADS requirements. Petitioner also demonstrated that Respondent failed to correct deficiencies identified through the TADS for two consecutive years (the 1995-96 and 1996-97 school years). Consequently, Petitioner has demonstrated that Respondent's PSC should not be renewed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the School Board of Dade County enter a final order:

1. Not renewing the professional service contract of Helen F. Ruby.

2. Dismissing Helen F. Ruby from employment with the School Board of Dade County.

3. Denying backpay to Helen F. Ruby.

DONE AND ENTERED this 30th day of September, 1998, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1998.

COPIES FURNISHED:

Twila Hargrove Payne, Esquire School Board of Dade County

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade

2929 Southwest 3rd Avenue, Suite 1

Miami, Florida 33129

Frank T. Brogan Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Mr. Roger C. Cuevas, Superintendent School Board of Dade County

1450 Northeast Second Avenue, Suite 403

Miami, Florida 33132-1308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-001469

Orders for Case No: 97-001469