STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PALM BEACH ) COUNTY, )

)

Petitioner, )

)

v. ) Case No. 97-2386

)

GLORIA STEEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Michael M. Parrish, of the Division of Administrative Hearings, conducted a final hearing in this case on April 21, 22, and 23, and on

June 1, 2, 3, 4, and 5, 1998, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Virginia Tanner-Otts, Esquire

Office of General Counsel

School Board of Palm Beach County 3318 Forest Hill Boulevard, Suite C West Palm Beach, Florida 33406

For Respondent: Beverly J. Ness, Esquire

Juan A. Pyfrom, Esquire

Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue in this case concerns whether Respondent is entitled to a new professional service contract as a teacher, or

whether the Petitioner may appropriately terminate the Respondent's employment by not entering into a new professional service contract with Respondent.

PRELIMINARY STATEMENT

By letter dated April 16, 1997, the Petitioner, School Board of Palm Beach County, Florida (School Board) notified Respondent, Gloria Steel, that she would not be reappointed to teach for the School Board due to her failure to correct teaching deficiencies identified during the 1995-96 school year, and not corrected during the 1996-97 school year. By letter dated April 29, 1997, Respondent requested an administrative hearing. On May 13, 1997, the matter was forwarded to the Division of Administrative Hearings for assignment to an administrative law judge.

The final hearing was initially convened and held on

April 21, 22, and 23, 1998. The final hearing was not completed during the time initially allotted. The hearing was reconvened and held on June 1, 2, 3, 4, and 5, 1998.

At the final hearing, the School Board presented testimony of the following witnesses: Dr. Walter H. Pierce, Principal of Palm Springs Elementary School and former Assistant Superintendent for Personnel; Dr. Barbara Jeanne Burdsall, Manager of Professional Standards; Dr. Mary B. Gray, Expert Witness in Performance Appraisal and Teaching Effectiveness and Assistant Professor at Florida Atlantic University; Ms. Sandra Lorraine Gero, Area 2 Instructional Support Team Member;

Ms. Barbara Clark, Program Planner in the Department of

Curriculum and Instruction; Ms. Sue Slone, Principal of Crystal Lakes Elementary School; Mr. Lawrence A. Heiser, Principal of Berkshire Elementary School and past Assistant Principal of Crystal Lakes Elementary School; Ms. Lois Leslie, retired past Principal of Crystal Lakes Elementary School; Mr. Kenneth H. Meltzer, Principal of Indian Pines Elementary School and past Assistant Principal of Crystal Lakes Elementary School; and Ms. Rebecca Congdon, PTO President at Crystal Lakes Elementary

School and a parent volunteer who had a daughter in Respondent's third grade class during 1995-96.

The following exhibits offered by the Petitioner were received in evidence: 1, 2, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15,

16, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 34, 35

(page 128), 37, 39, 42, 43 (page 143), 44, 45, 46 and 47, 48, 49

(pages 156-160), 50, 51, 53, 55, 60, 63, 65, 66, 67, 68, 69, 70,

71, 72, 73, 74, 76, 77, 78, 79, 81, 82, 83, 84, and 88.

Respondent presented testimony of the following witnesses: George Hudspeth, fiance; Barry Grace, teacher; Cheryl Bollinger, Guidance Counselor; Charles Augustus, teacher; Dr. Joanne Kaiser, Chief Personnel Officer; Herbert Cohen, Teacher's Aide; Annie Matthews, teacher; Helene Samango, Union Representative; Tammy Gregory, parent; Wilmer Marshall, parent; Dr. Linda

Cronin-Jones, Associate Professor, University of Florida; Cheryl Stenstrom, Junior Achievement Presenter and parent; Clarence

Gunn, Union Representative; and Gloria Steel, Respondent.

The following exhibits offered by the Respondent were received in evidence: 2, 4, 8, 9, 11, 15, 20, 21, 23, 24, 26,

27, 33, 34, 35, 36, 37, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79,

81, 84, 90, 91, 92, 93, 114, 115, 116, 117, 118, 119, 120, and

121.

At the final hearing the parties agreed to submit their proposed recommended orders within sixty (60) days of the filing of the transcript. Volumes I through V of the transcript were filed on July 6, 1998. Volumes VI through XIII were filed on July 16, 1998. By order issued on August 18, 1998, the time for filing proposed recommended orders was extended until

October 15, 1998, and Petitioner's motion to extend the page limit to fifty (50) pages was granted. By order issued on October 7, 1998, the page limit was extended to sixty-five (65) pages. Both parties timely submitted proposed recommended orders.

FINDINGS OF FACT

1. Since the 1988-89 school year, Respondent, Gloria Steel, has been employed as a classroom teacher with the Palm Beach County School District. At all times material to this proceeding, she held a professional services contract.

2. From the beginning of her employment with the Palm Beach County School District, through the 1992-93 school year, Respondent appears to have had a rather uneventful and lackluster professional career. Although all of her evaluations during those years rated her as satisfactory, her supervisors were of the opinion that, in general, she was a weak teacher who needed to improve many aspects of her teaching skills. During the school years from 1988-89 through 1992-93, there does not

   appear to have been any action by the School District to place Respondent on a teacher assistance plan.

3. When the 1993-94 school year began, a new principal, Ms. Sue Slone, was appointed at Crystal Lakes Elementary School, where Respondent was then teaching. That year, too, appears to have been rather uneventful for the Respondent. She continued to teach second grade, as she had done for several years. For that year Principal Slone gave Respondent a satisfactory annual evaluation. The annual evaluation did not list any areas of concern.

4. During the 1994-95 school year, Respondent was reassigned to teach a third grade class. Respondent experienced some difficulties making the transition from teaching second grade to teaching third grade. At the end of that school year, Respondent received an annual evaluation from Principal Slone that rated her as satisfactory, but, for the first time in Respondent's career with the School District, listed more than one area of concern. As originally issued, Respondent's annual evaluation for 1994-95 listed the following four areas of

   concern:

   
   

   1. Instructional Organization and Development

   2. Presentation of Subject Matter

   3. Communication: Verbal and Nonverbal

   4. Demonstrates Knowledge of Subject Matter

   Also included on Respondent's 1994-95 annual evaluation form were the following comments:

   Mrs. Steel has had a difficult time transitioning from second to third grade.

   A professional development plan will be developed for the 1995-96 school year. She has already begun seeking assistance from other staff members.

   
   

5. Respondent disagreed with the content of her 1994-95 annual evaluation. Respondent and Ms. Helene Samango, a Classroom Teacher Association ("CTA") representative, met with Principal Slone to dispute the annual evaluation. During that meeting, Principal Slone agreed, without a formal grievance, that there was insufficient documentation to support the area of concern related to "Communication: Verbal and Nonverbal." Accordingly, Principal Stone revised the evaluation by removing that area of concern from the evaluation.

6. The first observation of Respondent during the 1995-96 school year was on October 11, 1995. On that day, Assistant Principal Heiser observed Respondent's teaching for approximately twenty-five minutes. He was very concerned about what he observed. His concerns included such matters as Respondent's failure to teach anything for twenty-five minutes. Respondent also failed to stop misconduct on several occasions and lost instruction momentum on several occasions. During most of the observation, six or seven students in a class of twenty-

   five were not engaged. In general, the classroom was chaotic.

   
   

7. Following the observation on October 11, 1995, Assistant Principal Heiser discussed the observation with Respondent and advised her of his major concerns. He also discussed the matter with Principal Slone. On October 18, 1995, Principal Slone and Assistant Principal Heiser met with Respondent to discuss their concerns about her teaching deficiencies. They offered Respondent the assistance of a Peer Assistance and Review ("PAR") teacher, a teacher with extensive experience who comes into the classroom and words directly with the teacher who is having difficulty in the classroom.1 As a result of that offer, Respondent was in the PAR program for approximately one year. On October 19, 1995, Respondent was also provided with a School Site Assistance Plan. The plan was designed to address the specific teaching deficiencies that Principal Slone and Assistant Principal Heiser were concerned about.

8. Assistant Principal Heiser conducted an informal observation of Respondent's class for twenty-four minutes on December 1, 1995. Again, he observed deficiencies in Respondent's teaching that concerned him. Following the informal observation, he discussed his observations with Respondent and suggested ways she could improve her teaching.

9. On December 4, 1995, Principal Slone and Assistant

   Principal Heiser met with Respondent to discuss her teaching. Assistant Principal Heiser discussed his most recent observation of Respondent and described the teaching deficiencies he had observed. At the meeting they also discussed Respondent's progress on the School Site Assistance Plan. Respondent had accomplished some, but not all, of the activities on the plan.

   Both Mr. Heiser and Ms. Slone emphasized to Respondent that she needed to work over the holidays on her professional reading and she needed to complete all of the activities on the assistance plan.

10. Respondent's mid-year evaluation was prepared on December 7, 1995. Principal Slone identified eight (8) areas of concern, with the documentation for those concerns being provided by the observations of Principal Slone, Assistant Principal Heiser, and Mr. Spence.2 Concerns were in the following areas: (1) management of student conduct, (2) instructional organization and development, (3) presentation of subject matter, (4) communication: verbal and nonverbal, (5) knowledge of subject matter, (6) ability to plan effectively,

    (7) self control, and (8) adherence to and enforcement of school policies. Principal Slone included the following comments on Respondent's mid-year evaluation form:

    Mrs. Steel was given a school site assistance plan in October. At our conference 12/4/95, it was evident that she

    had not done the required activities to assist her in correcting the areas of concern. Many of the same problems that were observed last year continue to date. I believe she needs to address these areas immediately. She particularly needs to do the professional reading requested. My major concern is the misinformation that is given to students during direct teaching.

    
    

11. The deficiencies noted on the December 7, 1995, mid- year evaluation were a fair and accurate itemization of deficiencies in Respondent's performance during the period covered by the evaluation. During the period covered by the evaluation, Respondent's teaching performance was repeatedly and consistently unsatisfactory.

12. Due to the continuing deficiencies in Respondent's performance, the School Site Assistance Plan was continued for the next semester. Respondent's participation in the PAR program also continued. During the second semester, Respondent was observed by Principal Slone on January 31, 1996, and by Assistant Principal Heiser on March 28, 1996.3 While there were some improvements in some of Respondent's teaching skills, none of the improvement was significant or consistent. There was improvement in the areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies," which involve matters other than classroom teaching skills.

13. On March 29, 1996, Principal Slone prepared Respondent's annual evaluation for the 1995-96 school year. The

    evaluation rated Respondent's performance as unsatisfactory.

    
    

    The evaluation identified six areas of concern, all of which had previously been identified as areas of concern on the mid-year evaluation. (The areas of "Demonstrates Self Control" and "Adheres to and Enforces School Policies" were not listed as areas of concern on the annual evaluation on March 29, 1996.) The annual evaluation included the following comments:

    It is evident that Mrs. Steel has been working to improve her performance, however, at this time, consistency is lacking. In spite of the assistance provided by a PAR teacher as part of a school site Professional Development Plan, Mrs. Steel continues to have difficulty in the areas of concern.

    
    

    It is my expectation that Mrs. Steel continue to strive for acceptable levels of performance.

    
    

14. As a result of Respondent's continued teaching deficiencies during the second semester, on February 6, 1996, Principal Slone had written to the Superintendent to request that Respondent be notified that she would be given a year within which to correct the identified deficiencies. In pertinent part, the letter read as follows:

    On December 7, 1995, I completed a mid- year evaluation of Gloria Steel's performance as a classroom teacher (copy attached). I noted deficiencies in the following areas:

    1. Management of Student Conduct

    2. Instructional Organization and Development

    3. Presentation of Subject Matter

    4. Communication: verbal and Nonverbal

    5. Demonstrates Knowledge of Subject Matter

    6. Demonstrates Ability to Plan Effectively

    7. Demonstrates Self Control

    8. Adheres to and Enforces School Policies

       
       

       I have discussed my concerns with Ms.

       Steel and provided her with assistance in correcting these deficiencies. However, these deficiencies still exist. Therefore, I am requesting that you provide notice to Ms. Steel as required by Section 231.36, Florida Statutes, that she will be given the subsequent school year within which to correct these deficiencies.

       
       

15. Following receipt of the Principal Slone's letter of February 6, 1996, the Superintendent of Schools, by letter dated March 27, 1996, advised Respondent that she would be given the next school year within which to correct the deficiencies identified by her principal. In pertinent part, the Superintendent's letter read as follows:

    Please be advised that I have been notified by your principal, Sue Slone, that your current performance as a classroom teacher is unsatisfactory. You have previously been advised of deficiencies by your principal. Pursuant to Section 231.36, Florida Statutes, this letter is to notify you that you will be given the next school year to correct the deficiencies noted by your principal. You will be placed on a Professional Development Plan as detailed in the Classroom Teacher Assessment System (CTAS).

    
    

    If the deficiencies are not corrected

    during the prescribed time period, a change in your employment status may be recommended.

    
    

    If you have any questions concerning the procedures involved in this situation, please contact, Dr. Walter H. Pierce, Assistant Superintendent/Division of Personnel Services.

    
    

16. Shortly thereafter, School District personnel began providing district level assistance to Respondent. During the summer months, June through August, Respondent was required to read and complete various professional materials and to attend summer inservice.

17. By letter dated April 17, 1996, Respondent wrote to Dr. Walter H. Pierce and requested a transfer for the 1996-97 school year. The letter did not state any reason for the requested transfer. By letter dated July 9, 1996, Dr. Pierce advised Respondent that her request for transfer had been considered pursuant to Section 231.36(3)(e)1, Florida Statutes, and that the request for transfer was denied. The union representative Ms. Helene Samango made at least two further requests to Dr. Pierce that he grant the requested transfer. Ms. Samango asserted that there was a personality conflict between Principal Slone and Respondent which would make it unlikely or impossible for Respondent to receive a fair evaluation from Principal Slone.

18. On each occasion that Ms. Samango raised the issue of

    Respondent's request for a transfer to another school,

    
    

    Dr. Pierce denied the request for a transfer. Dr. Pierce was not convinced that there was any personality conflict between Principal Sloan and Respondent that would prevent Respondent from receiving fair evaluations. Dr. Pierce believed that the

    231 Professional Development Plan was fair and objective, and that it could be appropriately implemented without transferring Respondent to another school. Also, as a matter of policy, Dr. Pierce preferred not to transfer teachers who were having performance difficulties.

19. Principal Slone's evaluations of Respondent's performance as a teacher were based solely on Principal Slone's professional evaluation of what she saw and what was reported to her by other administrators who observed Respondent's teaching performance. Principal Slone's evaluations of Respondent were not motivated by any inappropriate personal considerations.

20. Most of the observations of Respondent's teaching performance were done by observers who used the FPMS summative observation instrument. That instrument is an accepted and appropriate instrument of observing and evaluating teacher performance in the classroom. Specifically, it was an appropriate instrument for use in the observations of Respondent's performance in the classroom.4

21. Dr. Barbara Jeanne Burdsall is employed by the School

    Board as the Manager of Professional Standards. Dr. Burdsall is responsible for developing, monitoring, and providing remediation for the evaluation systems for teachers. Dr.

    Burdsall's department receives copies of all mid-year and annual evaluations. They are reviewed by Dr. Burdsall to determine whether a teacher needs assistance and, if so, whether a School Site plan or a District plan should be initiated. School Site plans are initiated for teachers with fewer than five concerns. District plans are initiated for teachers with five or more concerns. Dr. Burdsall was responsible for implementation of Respondent's 231 Professional Development Plan.

22. As was her right, Respondent requested a meeting for an informal review of the documentation of unsatisfactory performance. Dr. Burdsall conducted that meeting on June 4, 1996. The purpose of the meeting was to review the deficiencies and the documentation of the deficiencies for adequacy. Helen Samango, the CTA Representative, was present at the meeting. No questions were raised about the sufficiency of the documentation.

23. The Palm Beach School Board has the following plans and procedures to assist teachers who have performance deficiencies: the School Site Plan, which deals with just the school site principal and the teacher, the Peer Assistance and Review Program, which trains master teachers to assist teachers

    who are having difficulties in the classroom, and the 231.36 Professional Development Plan, which follows the statutory provisions of Section 231.36, Florida Statutes. The Department of Education approved the School Board's 231 Professional Development Plan. Dr. Burdsall is of the professional opinion that the School Board of Palm Beach County Teacher Evaluation System complies with all of the requirements of Sections 231.29, and 231.36, Florida Statutes.5

24. Dr. Burdsall established a team to implement the Respondent's 231 Professional Development Plan. The team included Dr. Burdsall, a curriculum person, an outside university professor, other district experts, and the school site administrators. The team members could use the FPMS summative observation format or they could prepare narrative reports of their observations. Each observation by a team member was required to last at least twenty minutes. Each observer was also required to follow the requirements of the collective bargaining contract. The team included experts in various aspects of teaching, teacher observation, teacher evaluation, and teacher training. All of the team members provided, or attempted to provide, assistance to the Respondent during the 1996-97 school year.

25. Dr. Burdsall provided Respondent with a summer remediation program and strategies, a list of all of the

    seminars available in Respondent's areas of concern, and a copy of the portion of the 231 Professional Development Plan, which would be implemented in the fall. Among other things, that portion of the plan identified the observers who would be working with Respondent.

26. The portion of Respondent's 231 Professional Development Plan for August through December of 1996 consisted of workshops, seminars, professional observations with feedback and strategies for improvement, school site administrator assistance, and a mutually agreed-to colleague to work with Respondent in the classroom.

27. After the summer months' activities, Dr. Burdsall held a September 3, 1996, meeting with Respondent, Principal Slone, Assistant Principal Heiser, and CTA Representative Helene Samango. Respondent expressed enthusiasm about the new school year. She had completed her work over the summer, was continuing with her PAR teacher, and wanted to attend some full- day workshops. Respondent was notified as to when the observers would be visiting her classroom. Respondent was advised that if she wanted to observe instruction within the school or elsewhere in the district, Ms. Samango would contact Ms. Burdsall, and the District office would provide the funds. Respondent asked to work with Ms. Carla Lehrma and Ms. Gwen Simpson, both of whom were third-grade teachers at Crystal Lakes Elementary School.

    Throughout Respondent's 231 Professional Development Plan she had access to as much peer assistance and modeling as she felt she needed. The peer assistance was in addition to the year of assistance by the PAR teacher.

28. Respondent's mid-year evaluation was completed on December 6, 1996, and was based on six (6) observations. On that evaluation, Respondent was rated as unsatisfactory with six identified areas of concern. Respondent was continued on the

    231 Professional Development Plan. A meeting was held with Respondent regarding the plan on December 17, 1996.

29. During both semesters of the 1996-97 school year, Respondent was observed by Principal Slone and by other professional observers. The other professional observers who observed Respondent's classroom teaching were Ms. Sandra Gero, Assistant Principal Larry Heiser, Ms. Kathleen Gustafson,

    Dr. Jeanne Burdsall, Ms. Barbara Clark, and Dr. Mary Gray. All of the observers documented the same areas of concern that Principal Slone observed. There was a lack of subject matter being presented; a lack of instructional organization and development; and a lack of classroom management. The students were not on task and the choice of instruction was not appropriate. Respondent was not demonstrating knowledge of the subject matter or an ability to plan effectively.

30. By way of example, Dr. Mary B. Gray observed

    Respondent on October 8, 1996, and on February 12, 1997. Dr. Gray is an Assistant Professor in the Department of

    Educational Leadership at Florida Atlantic University, and has been in that position for eighteen years. In that position, Dr. Gray teaches personnel development and leadership courses. She also teaches supervision of instruction. These are all preparatory courses for school administrators.

31. During her observation on October 8, 1996, Dr. Gray was in the classroom for the full fifty-five minute period. There were twenty-nine students present, and during Dr. Gray's scan of the classroom, about a third of the students were not doing anything they were supposed to be doing. During the period Respondent did not state what the objective was for the lesson. She lost momentum and told the students to put their heads down because she said she was not happy with them. A clock was used that was not related to the lesson. There was no objective stated. The children were confused about what was going on. Some of respondent's efforts at classroom control were ineffective. There was no meaningful content taught during the period.

32. On February 12, 1997, Dr. Gray observed Respondent's teaching for thirty-two minutes. There were twenty-seven students present. Dr. Gray observed a mathematics class. Respondent started eight minutes late. Again the pacing was

    slow. Dr. Gray observed the same pattern of teacher behavior that she had observed before. Multiple questions were a problem in both observations. Respondent accepted some incorrect answers from students without providing the correct answers.

    There continued to be a serious problem with the off-task behavior. Respondent's teaching was not improving to any significant degree.

33. Based on her two observations of Respondent, Dr. Gray was of the professional opinion that Respondent was not a competent teacher.

34. Ms. Sandra Gero observed Respondent on September 25, 1996, and on January 13, 1997. Ms. Gero is an Area 2 Instructional Support Team Member. In her position she supports the schools in any way necessary in matters concerning instruction and personnel issues. Ms. Gero is involved in observations of teachers on 231 Professional Development Plans.

35. On September 25, 1996, Ms. Gero observed Respondent's classroom for 55 minutes. Ms. Gero observed a language arts lesson, because this is her area of expertise. The children were doing a handwriting assignment, printing upper and lower case letters. This activity was developmentally inappropriate for third grade. Ms. Gero did not see anything of instructional significance to the activity. As the students moved into a reading activity Ms. Gero observed that negative behavior was

    being reinforced. Ms. Gero observed Respondent's use of ineffective instructional strategies. At 9:30 a.m. five students were off-task. By 9:45 a.m. there were eight students off-task. Ms. Gero observed serious problems with student management and the lack of a classroom management plan. There was no direct teaching. At the conclusion of the observation, Ms. Gero made some suggestions to Respondent that would, hopefully, help her improve her teaching.

36. Ms. Gero's second observation lasted an hour and a half. Ms. Gero observed disjointed chaos in the classroom. The children's disruptive behavior was controlling the entire classroom. By 8:20 a.m. there had been no meaningful instruction. From about 8:30 a.m. until about 9:00 a.m. Respondent was at her desk looking through papers. During this second observation there was a worse classroom situation than during the first observation. There was no direct teaching during the ninety minutes of her observation. The six deficiency areas were still present.

37. In Ms. Gero's independent professional opinion, Respondent is not a competent teacher.

38. Assistant Principal Heiser observed Respondent's class on October 2, 1996. Instructional organization was becoming a major issue. There was still no presentation of subject matter and the deficiencies previously identified were still observed

    to be present.

    
    

39. Dr. Burdsall observed the Respondent's classroom teaching on December 2, 1996. The observation reflected that there was no teaching of subject matter, and there was a lack of management of student conduct. Dr. Burdsall's observation directly reflected the deficiencies previously documented by Principal Slone. There was no meaningful teaching going on during the observation.

40. Dr. Burdsall observed Respondent's classroom teaching again on February 20, 1997. Again there was no meaningful instruction taking place. It was very chaotic.

41. Dr. Burdsall was able to form an independent opinion as to Respondent's competency. That opinion was that Respondent is incompetent to teach.

42. Ms. Barbara Clark observed Respondent on November 8, 1996, and on February 26, 1997. Ms. Clark is a program planner for the School Board of Palm Beach County, Florida. She has been with the School District for almost twenty (20) years. Her responsibilities include creating or facilitating the writing of curriculum, preparing materials for teachers, and providing inservice to teachers.

43. Both of Ms. Clark's observations of Respondent lasted for approximately an hour and a half. Ms. Clark met with Respondent after the observations and provided feedback to her

    regarding the observations. Ms. Clark invited Respondent to call her if she could be of any further assistance. Ms. Clark's independent professional opinion, based on her observations and past professional training and experience, was that Respondent is not an effective teacher. Ms. Clark observed some improvement in

    Respondent's teaching at the second observation, but the improvement was not sufficient to be effective.

44. During the course of the implementation of Respondent's 231 Plan, Dr. Burdsall, the Principal, the Assistant Principal, the Union Representative, and the Respondent met periodically to discuss the observations, the progress of the Respondent's work, any areas that needed clarification, and to see if there was any further assistance that could be offered. Respondent was also provided with a math aide, Herbert Cohen.

45. Dr. Burdsall, the Principal, the Assistant Principal, and the Union Representative, met with Respondent on November 26, 1996. At the meeting they discussed the continuing need to tie activities to objectives and to the theme. Respondent had attended several seminars and workshops. They also reviewed the observations completed by Ms. Clark and Ms. Gustafson, addressed the issues of centers and cooperative learning in Respondent's classroom, discussed the mistakes that were being made by

    Respondent with respect to spelling, and gave Respondent some strategies to help her focus her teaching. Assistant Principal Heiser did not see any improvement in Respondent's teaching; the same problems continued to exist.

46. Dr. Burdsall met with the Principal, the Union Representative, and the Respondent on February 28, 1997, to again assess the status of Respondent's progress on the plan and to determine what additional assistance was needed. The original concerns were still present.

47. On March 12, 1997, Assistant Principal Heiser and Principal Slone completed an Annual Evaluation for Respondent. In completing the annual evaluation, Principal Slone relied on her own observations and on all of the other observations by the members of the professional development team. Respondent continued to have six areas of deficiency, in spite of extensive remediation and assistance. Respondent continued to have a consistent pattern of problems in the six specific areas identified. Because the deficiencies had continued, Principal Slone communicated to the Superintendent that Ms. Slone was not recommending Respondent for reappointment for the 1997-1998 school year.

48. Based on the Principal's evaluation of Respondent and the recommendations the Principal made to the Superintendent, Respondent was notified by the Superintendent that she would not

    be re-appointed, and that she had the right to request a hearing before the Division of Administrative Hearings

    CONCLUSIONS OF LAW

    
    

49. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

50. In a case of this nature the School Board has the burden of establishing by a preponderance of the evidence that there are sufficient grounds to terminate Respondent's employment as a school teacher. See Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade

    County, 569 So. 2d 883 (Fla. 3d DCA 1990); Ferris v. Austin, 487 So. 2d 1163 (Fla. 5th DCA 1986).

51. This case involves the termination, on the grounds of "unsatisfactory performance" within the meaning of Section 231.36(3)(e), Florida Statutes (1995), of a teacher who holds a professional services contract. This is not a proceeding involving termination for "just cause" under Section 231.36(1)(a), Florida Statutes (1995).6 Proceedings under Section 231.36(3)(3) are separate and distinct from proceedings under Section 231.36(1)(a). Jack Taylor v. Carmen Hernandez, DOAH Case No. 97-1855, 1997 WL 1053318 (Recommended Order issued September 26, 1997).

52. Among the statutory provisions applicable to this proceeding is Section 231.29, Florida Statutes (1995), which reads as follows:

    1. Assessment procedures and criteria.

       1. For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the superintendent shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed in his or her district. The following conditions must be considered in the design of the district's instructional personnel assessment system:

          1. The system must be designed to support district and school level improvement plans.

          2. The system must provide appropriate instruments, procedures, and criteria for beginning, probationary, and nonprobationary stages of a teaching career.

          3. In addition to addressing generic teaching competencies, districts must determine those teaching fields for which special procedures and criteria will be developed.

          4. The school board shall provide training programs which are based upon guidelines provided by the Department of Education to ensure that all individuals with evaluation responsibilities understand the proper use of the assessment criteria and procedures. Such training programs may be provided under s. 231.087.

       2. The assessment procedure shall comply with, but shall not be limited to, the following requirements:

          1. An assessment relating to the criteria specified in subsection (3) shall be conducted for each employee at least once a year. Such assessment shall be based upon sound educational principles and

             contemporary research in effective educational practices.

          2. All personnel shall be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.

          3. A written report of each assessment shall be made and a copy thereof shall be given to the employee no later than 10 days after the assessment takes place. The written report of assessment shall be discussed with the employee by the person responsible for preparing the report. The employee shall have the right to initiate a written response to the assessment, and the response shall become a permanent attachment to his or her personnel file.

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

       3. A complete statement of the assessment criteria shall include, but shall not be limited to, observable indicators that relate to the following:

          1. Ability to use appropriate classroom management techniques, including ability to maintain appropriate discipline.

          2. Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.

          3. Ability to plan and deliver instruction.

          4. Ability to evaluate instructional needs.

          5. Other professional competencies, responsibilities, and requirements as determined by the local district.

       4. The individual responsible for the supervision of the employee shall make the assessment of the employee and forward such assessment to the superintendent for the purpose of reviewing the employee's contract.

       5. The superintendent shall notify the department of any instructional personnel who receive two consecutive unsatisfactory annual evaluations and who have been given written notice by the district that their employment is being terminated or is not being renewed or that the school board intends to terminate, or not renew, their employment. The department shall conduct an investigation to determine whether action shall be taken against the certificateholder pursuant to s. 231.28(1)(b).

       6. Nothing in this section shall be construed to grant a probationary employee a right to continued employment beyond the term of his or her contract.

       7. The district school board shall establish a procedure annually reviewing instructional personnel assessment systems to determine compliance with this section. All substantial revisions to an approved system must be reviewed and approved by the school board before being used to assess instructional personnel. Upon request by a school district, the department shall provide assistance in developing, improving, or reviewing an assessment system.

    
    

53. Also relevant to the issues in this case is the following language from Section 231.36, Florida Statutes (1995):

    231.36 Contracts with instructional staff, supervisors, and principals. ---

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated pursuant to s. 231.17 or employed pursuant to s. 231.1725 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 provisions 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)(a) The school board of each district shall provide a professional service contract as prescribed herein.

    * * *

    
    

    (e) A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by s. 231.29(4), charges the employee with unsatisfactory 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 provisions 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 the superintendent's 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 administrator, 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 or she 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. 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. Such hearing shall be conducted at the employee's election in accordance with one of the following procedures: a. A direct hearing conducted by the school board within 45 days of receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of s. 120.57(1)(a)1. A majority vote of the membership of the school board shall be required to sustain the superintendent's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency

    of the grounds for termination of employment; or b. A hearing conducted by a hearing officer assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 45 days of receipt of the written appeal in accordance with chapter

    120. The recommendation of the hearing officer shall be made to the school board.

    A majority vote of the membership of the school board shall be required to sustain or change the hearing officer's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment. (Emphasis added.)

    
    

54. In the normal course of events, the material issues that can be raised by a teacher in a proceeding involving "unsatisfactory performance" under Section 231.36(3)(e), Florida Statutes (1995), will be whether the teacher's performance was unsatisfactory prior to being charged with unsatisfactory performance, whether the teacher's performance continued to be unsatisfactory after being so charged, whether the teacher was given the notices required by statute, and/or whether the teacher was provided with the assistance and inservice training opportunities required by statute. Respondent has raised all of these issues. The evidence in this case establishes that Respondent's performance was unsatisfactory during the 1995-96 school year. The evidence also establishes that Respondent was provided with the notices required by statute. The evidence establishes that the assistance and inservice training

    opportunities provided to Respondent during the 1996-97 school year met the requirements of the applicable statutes.

    Similarly, the evidence establishes that the observations and evaluations of Respondent's performance were conducted in a manner consistent with the statutory requirements. Finally, the evidence establishes that Respondent's performance continued to be unsatisfactory during the 1996-97 school year, Respondent's remedial year.

55. The responsibility of the School Board to a teacher whose performance is determined to be unsatisfactory, is to provide assistance and training opportunities that will, hopefully, make it possible for the teacher to correct the performance deficiencies. The burden of improvement is on the teacher. Where, as here, the School Board has provided the statutorily required notices and the statutorily required assistance and training opportunities, it may lawfully terminate the teacher's employment by not renewing the teacher's contract, if the teacher fails to correct the performance deficiencies during the statutory period.

56. Among Respondent's arguments is the assertion that the School Board failed to comply with the applicable statutes by failing to grant her request for a transfer to another school. The argument is unavailing, because there is no statutory requirement that such a request be granted. Section 231.36,

    Florida Statutes (1995), provides that an employee in Respondent's circumstances ". . . may request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator. . . ." The statute does not contain any direction with respect to a School Board's response to such a request. This statutory silence leaves the disposition of such a request to the sound and broad discretion of the School Board. The School Board's denial of the request for transfer does not provide a basis for any relief sought by Respondent. See Dietz v. Lee County School Board, 647 So. 2d

    217 (Fla. 2d DCA 1994), for a discussion of how very broad School Board discretion appears to be in matters such as these.

57. Respondent also argues that she was not provided with the assistance to which she was entitled pursuant to Section 231.36(3)(e)3, Florida Statutes (1995). The statutory language requires that ". . . the employee shall be provided assistance and inservice training opportunities to help correct the noted performance deficiencies." The greater weight of the evidence supports a conclusion that the assistance and inservice training

    opportunities provided to Respondent were more than sufficient to meet the requirements of the statute.

58. Respondent also argues that much of the evidence regarding her teaching performance is insufficient to establish that her teaching was unsatisfactory. In support of this argument she asserts that the FPMS summative observation instrument is not suitable for evaluation of a classroom teacher in a "whole language" class. The greater weight of the evidence is contrary to Respondent's arguments in this regard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Palm Beach County, Florida, enter its final order denying renewal of Gloria Steel's professional service contract.

DONE AND ENTERED this 30th day of July, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1999.

ENDNOTES

1/ The PAR Program is a joint program by the union and the School Board, wherein four representatives from the School Board and four representatives from the union determine which teachers are referred to PAR, and also determine the length of time each teacher will receive PAR assistance. The PAR teachers assist and observe the teacher who is having difficulty. Those observations

and information are not used in any way with respect to the teacher's evaluation or the 231 plan.

2/ During the first half of the 1995-96 school year, documented observations of Respondent were conducted on at least five occasions. Those observations consistently demonstrated unsatisfactory performance as a classroom teacher. It was also Principal Slone's practice to make frequent, brief, informal "walk-through" observations of her teachers.

3/ These findings of fact do not attempt to describe all of the observations of Respondent's teaching performance during her career at Crystal Lakes Elementary School. The observations described are sufficient to illustrate Respondent's repeated and continuing deficiencies.

4/ Respondent argues that the FPMS summative observation instrument is not suited to observation and evaluation of teachers who are teaching in a "whole language" or "applied literature" environment. The greater weight of the evidence is to the contrary.

5/ The greater weight of the evidence supports the conclusion that the School Board's 231 Professional Development Plan, as implemented for Respondent, provides the "assistance and inservice

training opportunities" required by Section 231.36(3)(e)3, Florida Statutes (1995).

6/ Some of the earlier decisions in cases involving "unsatisfactory performance" appear to have blended the provisions of Section 23136(1)(a), Florida Statutes (1995), with the provisions of Section 231.36(3)(e), Florida Statutes (1995), rather than treat them as separate and distinct procedures for the termination of teachers. For example, Palm Beach County School Board v. Margaret Irvin, DOAH Case No. 95-2073, 1996 WL

1059892 (Recommended order issued April 19, 1996), appears to be an "unsatisfactory performance" case under 231.36(3)(e), but the issues are discussed in 231.36(1)(a) terms such as "just cause" by reason of the teacher's "incompetence." Some of the distinctions between the two types of proceedings are discussed in Jack Taylor v. Carmen Hernandez, DOAH case No. 97-1855, 1997 WL 1053318 (Recommended Order issued September 26, 1997).

COPIES FURNISHED:

Virginia Tanner-Otts, Esquire Office of General Counsel

School Board of Palm Beach County 3318 Forest Hill Boulevard, Suite C West Palm Beach, Florida 33406

Beverly J. Ness, Esquire Juan A. Pyfrom, Esquire

Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

Dr. Joan P. Kowal, Superintendent School Board of Palm Beach County 3340 Forest Hill Boulevard

West Palm Beach, Florida 33406

Tom Gallagher, Commissioner of Education Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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: 97-002386

Orders for Case No: 97-002386