STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY )

SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1537

)

LORETTA L. YOUNG, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on November 23 and 24, 1998, and on December 18, 1998, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings. The hearing was conducted via video teleconference, with the parties appearing in Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Attorney's Office

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade Law Department

2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

Whether the Petitioner's decision not to renew the Respondent's professional service contract for the 1998-99 school year should be sustained.

PRELIMINARY STATEMENT

In a letter dated March 12, 1998, the Superintendent of Schools for the Miami-Dade County public school system notified Loretta L. Young that he intended to recommend to the School Board of Miami-Dade County, Florida ("School Board"), that she not be issued a professional service contract for the 1998-99 school year. He further advised Ms. Young that, unless the non-reappointment nomination was rescinded, her employment with the School Board would terminate effective June 19, 1998. Ms. Young timely requested a hearing, and the School Board transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The School Board's Notice of Specific Charges of Unsatisfactory Performance ("Notice of Specific Charges") was filed with the Division of Administrative Hearings on May 1, 1998.

At the final hearing, the School Board presented the

testimony of eleven witnesses: Edward Bethel, formerly an assistant principal at North Dade Middle School; W. J. Roberson, formerly the principal of North Dade Middle School; Elizabeth Rivero, an assistant principal at North Dade Middle School; Eunice Davis, the principal of North Dade Middle School; Carnell White, the Director of Region I of the Miami- Dade County public school system; Theodore Boydston, formerly

a District Science Supervisor in the Miami-Dade County public school system; Thomas Sippio, an assistant principal at North Dade Middle School; Dr. Gustavo Loret de Mola, a District Science Supervisor in the Miami-Dade County public school system; Dr. Thomasina O'Donnell, a Director of the Miami-Dade County public school system's Office of Professional Standards; and Dr. Joyce Annunziata, Senior Executive Director of the Miami-Dade County public school system's Office of Professional Standards, who was qualified as an expert in teacher performance appraisal and personnel management.

Petitioner's Exhibits 6 through 61 were offered and received into evidence; because they were incomplete when offered, the Petitioner filed amended Exhibits 39, 48, 49, and 50 based on the stipulation of the parties.

Ms. Young testified in her own behalf and presented the testimony of Luis Grau, a teacher formerly employed at North Dade Middle School, and Mitchell Ruffin, an administrative assistant at North Dade Middle School. Respondent's Exhibit 1 was offered and received into evidence; however, a copy of this exhibit was not sent to the Division of Administrative Hearings and is, therefore, not part of the record of this proceeding. Official recognition was given to School Board Rules 6Gx13-4A-1.21 and 6Gx13-5B-1.04; Sections 231.09 and

.36, Florida Statutes (1997); Rules 6B-1.001 and .006, Florida

Administrative Code; and excerpts from the Contract Between the Dade County Public Schools and the United Teachers of Dade, effective July 1, 1997, through June 30, 2000.

During the final hearing, the School Board made an ore tenus motion to amend the Notice of Specific Charges to correct two typographical errors. The motion was granted without objection, and the following amendments were made: In paragraph 25, the correct date is September 27, 1995; in paragraph 40, the correct paragraph reference is paragraph 39. The School Board also made an ore tenus motion to amend the Notice of Specific Charges to include the allegation that an unacceptable observation of Ms. Young was conducted on May 5, 1998, after this matter was referred to the Division of Administrative Hearings and the Notice of Specific Charges filed. Ms. Young objected to the requested amendment, arguing that the School Board should be limited to the allegations already included in the Notice of Specific Charges. The objection was not based on a claim of surprise or prejudice; rather, Ms. Young argued that it would be inappropriate to allow an amendment on the day of the final hearing. Having considered the arguments of counsel, the ore tenus motion to amend the Notice of Specific Charges is GRANTED.

In the Notice of Specific Charges, the School Board

asserted that it had decided at its March 18, 1998, meeting

not to renew Ms. Young's professional service contract pursuant to the recommendation of the Superintendent of Schools and based on the authority set forth in Section 231.36(3)(e), Florida Statutes (1997), which governs non- renewal of a teacher's professional service contract on the grounds of unsatisfactory performance. The School Board included allegations of fact in the Notice of Specific Charges relating to Ms. Young's alleged unsatisfactory performance as a teacher over a period of three consecutive years, specifically the 1995-96, 1996-97, and 1997-98 school years.

In addition, the School Board included allegations of fact relating to incidents allegedly bearing on Ms. Young's performance that took place during the 1991-92, 1993-94, and 1994-95 school years. A significant portion of the evidence the School Board offered at the hearing, to which there was no objection, deals with Ms. Young's performance from the 1991-92 school year through the 1995-96 school year.

It is, however, unnecessary to sift through the evidence and make findings of fact relating to Ms. Young's performance deficiencies prior to the 1996-97 and 1997-98 school years.

As discussed in more detail in the Conclusions of Law below, it appears from the provisions of Section 231.36(3)(e) and (f), Florida Statutes (1997), that, at a maximum, two years of unsatisfactory performance are sufficient to support a

recommendation to the School Board that a teacher's professional service contract not be renewed because of unsatisfactory performance. Thus, sufficient proof that Ms. Young's performance of her duties and responsibilities

during the 1996-97 and 1997-98 school years was unsatisfactory is all that is necessary to determine if the School Board's decision not to renew Ms. Young's professional service contract for the 1998-99 school year should be sustained.

The transcript of the final hearing was filed with the Division of Administrative Hearings, and the parties filed proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The School Board of Miami-Dade County, Florida, is the entity authorized to operate the public schools in the county and to "provide for the appointment, compensation, promotion, suspension, and dismissal of employees" of the school district. Section 4(b), Article IX, Florida Constitution; Section 230.23(4) and (5), Florida Statutes (1997).

2. At the times material to this proceeding, Loretta Young was a science teacher employed under a professional service contract by the School Board and assigned to North Dade Middle School ("North Dade"). She was initially hired by the School Board as a substitute teacher in February 1987, was subsequently hired as a full-time teacher, and then placed on a professional service contract at some time after the 1994-95 school year. Ms. Young is a member of United Teachers of Dade and is governed by the Contract Between the Dade County Public Schools and the United Teachers of Dade ("Contract").

3. The Teacher Assessment and Development System ("TADS") is the instrument which has been used by the School Board since the 1984-85 school year for evaluating teachers' performance. TADS is certified by the State of Florida as an appropriate evaluation system, and TADS and all of the materials associated with TADS, including the training requirements, are incorporated into Article XIII of the Contract. TADS is based on the assumption that a teacher must perform certain basic teaching behaviors in order to be effective in the classroom, and it is a baseline instrument; that is, it does not distinguish between a teacher whose performance is minimally acceptable and a teacher whose performance is exceptionally good. The assessments of teacher performance are derived from actual observations of the

   teacher teaching in the classroom. The observations normally last for an entire class period.

4. TADS interim and annual evaluations are normally done by school principals or their designees, but the actual observations of a teacher's performance can be done by anyone on an administrative level who is certified as proficient in the use of the system. Certification requires four days of training, and a person is not considered proficient in the system unless he or she passes several examinations.

5. The number of times each year a teacher is observed as part of the TADS process is based on the teacher's contract status. A teacher under a professional service contract must be observed at least one time during the school year unless the teacher has received an annual evaluation of unacceptable at the end of the previous school year. In such a situation, several observations are required because the deficiencies on which the unacceptable evaluation is based are considered remediated, or corrected, only when the teacher achieves two consecutive acceptable summative decisions, or assessments.1 Only then can such a teacher receive an annual evaluation of acceptable.

6. The TADS manual provides the framework for assessing the classroom performance of a teacher. It is divided into several parts: The Classroom Assessment Instrument contains

   assessment items, directions, definitions, and the ground rules for making an observation; the Record of Observed Deficiencies/Prescription for Performance Improvement ("Record") is a form designed to assist the observer in organizing the information derived from an observation; the Interpretive Guide, describes in detail the teaching behaviors which are to be the subject of the observation, together with an explanation of the basis for acceptable performance ratings in each category.

7. TADS is divided into two sections. Component A deals with teaching behaviors which are the subject of observation of the teacher's performance in the classroom. The decision categories included in Component A of TADS and the specific behaviors, or indicators, are the following:

   CATEGORY I - PREPARATION AND PLANNING

   
   

   THE TEACHER SHOWS EVIDENCE OF PREPARATION AND PLANNING IN STRUCTURING THE LEARNING EXPERIENCES OF STUDENTS.

   1. The teacher develops lesson plans.

   2. The classroom activities reflect evidence of effective instructional planning.

      
      

      CATEGORY II - KNOWLEDGE OF THE SUBJECT MATTER

      
      

      THE TEACHER DEMONSTRATES SUBJECT MATTER COMPETENCE WHILE TEACHING.

      1. Subject matter content.

      2. Subject matter presentation.

      
      

      CATEGORY III - CLASSROOM MANAGEMENT

      THE TEACHER ADMINISTERS ACTIVITIES WELL SO THAT PUPILS ARE ABLE TO UNDERSTAND EXPECTATIONS AND WORK EFFICIENTLY WITH LITTLE DISRUPTION.

      1. Most of the observation period is devoted to some form of instruction rather than to organizational activities, i.e., roll taking, distribution of supplies/materials and regrouping for instruction.

      2. The teacher uses strategies to prevent, identify and redirect off-task learners.

      3. Pupil behavior is managed appropriately.

      CATEGORY IV - TECHNIQUES OF INSTRUCTION

      
      

      THE TEACHER INSTRUCTS AT LEVELS WHICH ARE COMMENSURATE WITH THE INTELLECTUAL AND DEVELOPMENTAL NEEDS OF LEARNERS, PRESENTS CONTENT IN SEQUENTIAL AND ORDERLY FASHION, AND FACILITATES INTERACTIONS PERTINENT TO LESSON OBJECTIVES.

      1. Instructional materials and methods are appropriate to the needs and abilities of the learners.

      2. Pupil performance on learning objectives is monitored.

      3. Opportunities are provided for verbal interaction.

      4. Opportunities are provided for active involvement.

      5. Media are used to facilitate instruction.

      6. Instruction follows a sequence.

      7. Clear explanations and directions are provided.

      8. Directions and explanations are clarified when necessary.

      
      

      CATEGORY V - TEACHER-STUDENT RELATIONSHIPS

      
      

      THE TEACHER ESTABLISHES POSITIVE AND CONSTRUCTIVE RELATIONSHIP WITH STUDENTS TO STIMULATE AND MAINTAIN A POSITIVE LEARNING ENVIRONMENT.

      1. Attempts to systematically involve all students in class activities.

      2. Promotes a positive interpersonal environment.

      
      

      CATEGORY VI - ASSESSMENT TECHNIQUES

      
      

      THE TEACHER UTILIZES A VARIETY OF INFORMAL AND FORMAL ASSESSMENT TECHNIQUES WHICH MOTIVATE AND ENABLE STUDENTS TO LEARN AND WHICH ASSIST THE TEACHER IN UNDERSTANDING THE DEGREE OF STUDENT LEARNING AND THE DEGREE TO WHICH INSTRUCTIONAL OBJECTIVES ARE BEING ATTAINED.

      1. Makes informal assessments of student learning and progress during the lesson.

      2. Makes formal assessments of student academic and/or vocational progress.

      
      

8. Component B of TADS consists of Category VII, which measures a teacher's performance of his or her professional responsibilities. Teachers are assessed on a continuing basis with respect to this category, and the decision categories for the professional responsibility component are the teacher's compliance with School Board rules and with the provisions of the Contract. Data relating to professional responsibility are used only in making the decision regarding a teacher's annual evaluation.

9. The Record is an essential component of TADS. It is the form in which the person conducting a formal observation of a teacher's performance describes in detail the observed behavior that is found deficient, organized by categories. The observer also includes in the Record a detailed description of "prescription plan activities" designed to assist the teacher in correcting the observed deficiency or deficiencies and to identify resources, usually school personnel, which the teacher may or must consult in order to complete the prescribed activities. A date by which the activity must be completed is identified in the report, as well. The teacher is entitled to provide in the Record an explanation of the behavior that was cited as deficient.

10. TADS was used in assessing Ms. Young's teaching performance, and most of the observations of her classroom teaching lasted two hours because this was the length of a class period for her science classes, many of which were on block scheduling.

11. Ms. Young began the 1996-97 school year "on prescription,"2 as a result of an external observation conducted on May 30, 1996, by Elizabeth Rivero, an assistant principal at North Dade, and Dr. Gus Loret de Mola, a District Science Supervisor. In this observation, Ms. Young's performance was found unacceptable in parts A and B of the preparation and planning category, in all three parts of the class management category, and in parts F and G of the techniques of instruction category. The Report contained prescription plan activities which Ms. Young was expected to complete in August and September of the 1996-97 school year. Ms. Young's TADS Annual Evaluation reflected an overall unacceptable rating, and a Summary of Conference-for-the- Record held June 6, 1996, reflects that Ms. Young was advised of this rating and of the fact that the prescriptions contained in the Record would carry over into the 1996-1997 school year.

12. On September 19, 1996, Eunice Davis, who became

    
    

    principal of North Dade in September 1996, conducted a formal

    observation of Ms. Young's teaching performance as she taught a science class. In the Record of the observation, Ms. Davis identified two deficiencies in part B and three deficiencies in part C of the classroom management category and two deficiencies in part F and two deficiencies in part G of the techniques of instruction category. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were either disruptive or off-task and her failure to make clear to the students her expectations regarding their behavior. The deficiencies in techniques of instruction related generally to Ms. Young's failure to put the components of the lesson in the appropriate sequence, her failure to provide closure of the lesson, and her failure to explain and/or demonstrate clearly an assignment involving use of a ruler which the students obviously did not understand.

    Ms. Davis included prescription plan activities for each

    
    

    deficiency identified, which were to be completed by October 11, 1996. Ms. Young provided in the Record an explanation of why she did not deal appropriately with a

    student who kept her head on her desk for approximately thirty minutes of the class period, but no changes were made in the Record regarding the cited deficiencies in Ms. Young's teaching performance.

13. On December 11, 1996, a Mid-Year Conference-for-the- Record was held with Ms. Young, Ms. Davis, Ms. Rivero, and Georgeanna Vagias, Ms. Young's union steward. The conference was summarized in a memorandum dated December 11, 1996. As recited in the summary, one purpose of the conference was to review Ms. Young's performance assessment to date. Ms. Young was reminded that she had received an unacceptable observation on September 19, 1996, followed by an acceptable observation on October 21, 1996, which resulted in a summative assessment of unacceptable. Ms. Young was further advised that, because she had been rated unacceptable in her TADS annual evaluation for the 1995-96 school year, remediation of her cited deficiencies would be accomplished only when she had received two consecutive summative ratings of acceptable. Additional assessment procedures were explained to Ms. Young, and she stated she had no further questions.

14. In addition to the deficiencies found in Ms. Young's

    
    

    performance in the classroom assessment component of TADS during the fall of 1996, Ms. Young was cited for deficiencies in the area of professional responsibility. These deficiencies were discussed during the December 11, 1996, Mid- Year Conference-for-the-Record. As recited in the summary of the conference dated December 11, 1996, the other purpose of the conference was to review the results of an investigation

    into an incident in which Ms. Young allegedly committed battery on a student. Ms. Davis read the statements of Ms. Young, the victim, and the witnesses to the incident

    during the conference. Ms. Young was given the opportunity to speak, and she stated that she was not guilty of the offense charged; in response to a question from the union steward, however, Ms. Young admitted that she had touched the student. After reviewing all of the statements and the results of the investigation, Ms. Davis concluded that the charge against

    Ms. Young was substantiated. According to the summary, the resulting discipline consisted of the Conference-for-the- Record and the preparation of a TADS Record of Observed Deficiencies/Prescription for Performance Improvement.

15. The Record, prepared December 11, 1996, reflected two deficiencies in the professional responsibility category. Ms. Young was cited for being non-compliant with School Board rules relating to corporal punishment and to the responsibilities and duties of teachers and with the portion of the Dade County Public Schools/United Teachers of Dade Contract dealing with student discipline. Ms. Young was also cited for being non-compliant with site directives regarding the use of physical means to discipline students. In the Record, which Ms. Davis signed on December 17, 1996, she included prescription plan activities to assist Ms. Young in

    remediating these deficiencies, with a completion date of February 17, 1997. Ms. Young provided an explanation of the incident in the Record, in which she stated that, as she closed the door of the classroom from the outside (because she needed to make a quick trip to the office), the victim grabbed the door handle and tried to keep her from closing the door.

    Ms. Young stated in her explanation that she "simply removed [the student's] hand from the door."

16. Ms. Young's mother died in the winter of 1997, and Ms. Young was absent from North Dade beginning on January 6, 1997. In a letter dated February 11, 1997, Ms. Davis requested that Ms. Young notify the school with respect to her employment intentions. The options presented to Ms. Young were to notify Ms. Davis of the date she intended to return to school, to request leave, to resign her position, or to retire. Ms. Young responded by informing Ms. Davis that she intended to return to work on March 3, 1997, and she did so.

17. During the time that Ms. Young was absent from school, Ms. Davis notified Ms. Young that performance deficiencies cited during the 1996-97 school year had not been remediated and that she was recommending that Ms. Young's professional service contract not be renewed for the 1997-98 school year. This information was conveyed to Ms. Young in a letter dated

    February 20, 1997, with the reference "CONFERENCE DATA DELINEATED FOR RECOMMENDATION FOR NON-RENEWAL OF PROFESSIONAL

    SERVICE CONTRACT." The information was provided to Ms. Young by letter because she was absent during the time that the conference was required to be conducted. A copy of

    Ms. Young's interim evaluation, in which her performance was rated unacceptable, was enclosed with the letter. Ms. Young was advised in the letter that assessment procedures would continue and that a conference-for-the-record would be held when she returned to school. Ms. Young signed the interim evaluation form on February 24, 1997.

18. The promised conference-for-the-record was held on March 7, 1997; in attendance were Ms. Young, Ms. Davis, Thomas Sippio, assistant principal at North Dade; and Georgeanna Vagias, Ms. Young's union steward. The summary of the conference, dated March 10, 1997, recites that Ms. Young was advised that it had been recommended that her professional service contract not be renewed because her first summative assessment for the 1996-97 school year was unacceptable, based on the unacceptable observation conducted on September 19, 1996, and on an acceptable observation conducted on

    October 21, 1996. According to the summary, Ms. Young apprised that, because she had received an annual evaluation of unacceptable for the 1995-96 school year, remediation of

    the deficiencies in performance would occur only when she achieved two consecutive acceptable summative assessments.

    Ms. Young was also informed at the conference that, should her professional service contract not be renewed, the possibility existed that she would not be appointed for an annual contract. The summary reflects that Ms. Young indicated during the conference that she understood the seriousness of her situation.

19. In a letter dated March 10, 1997, the Superintendent of Schools notified Ms. Young that she was being charged with unsatisfactory performance during the 1996-97 school year in the area of "Category VII-Professional Responsibilities."

    Ms. Young was further advised that her employment might be terminated if the performance deficiency was not corrected during the 1997-98 school year. Ms. Young was offered a meeting with Dr. Joyce Annunziata, Senior Executive Director of the School Board's Office of Professional Responsibility, to discuss her unsatisfactory performance and her right to request a transfer. Finally, Ms. Young was notified that her performance would continue to be evaluated during the remainder of the 1996-97 school year and during the 1997-98 school year.

20. In a letter dated March 20, 1997, Dr. Annunziata advised Ms. Young that she had not been recommended for

    renewal of her professional service contract and that the School Board had acted on this recommendation:

    Assessment of your performance will continue throughout the 1996-97 and 1997-98 contract years as a follow-up to the completion of prescriptive guidelines.

    This is your official notification that unless the performance deficiencies are remediated, your employment with Dade County Public Schools will terminate at the close of the 1997-98 contract year.

    
    

21. On March 21, 1997, Ms. Rivero conducted another formal observation of Ms. Young's teaching performance as she taught a seventh grade science class. In the Record of the observation, Ms. Rivero identified two deficiencies each in parts A and B of the planning and preparation category; three deficiencies in part B and two deficiencies in part C of the classroom management category; and two deficiencies in part A of the techniques of instruction category. The deficiencies in preparation and planning generally related to Ms. Young's lack of a lesson plan, with the resulting lack of the required competency-based curriculum objectives for the lesson. The deficiencies in classroom management related generally to

    Ms. Young's failure to redirect students who were either disruptive or off-task. The deficiencies in techniques of instruction related generally to the lack of appropriate instructional materials and methods. Ms. Rivero included prescription plan activities for each deficiency identified,

    which were to be completed by April 16, 1997. Ms. Young provided in the Record an explanation of her performance with respect to each deficiency identified by Ms. Rivero, but Ms. Rivero concluded that the explanations were not sufficient to change her determination of the deficiencies in Ms. Young's teaching performance.

22. Ms. Young was given an overall summary rating of unacceptable in the summative assessment of her teaching performance signed by Ms. Rivero on March 26, 1997. This rating was based on the October 21, 1996, and March 21, 1997, formal observations of Ms. Young's teaching performance. The overall rating derived from ratings of unacceptable in the preparation and planning, classroom management, and techniques of instruction categories.

23. Because Ms. Young had two consecutive summative assessments in which her teaching performance was rated unacceptable, an external observation of her teaching performance was conducted on April 23, 1997, by Ms. Davis and Ted Boydston, a District Science Supervisor. Ms. Young was observed teaching a seventh grade science class. In the Record of the observation, Ms. Davis and Mr. Boydston identified two deficiencies in part B of the planning and preparation category; two deficiencies each in parts A and H and three deficiencies in part E of the techniques of

    instruction category; and three deficiencies in part B of the assessment techniques category. The deficiencies in preparation and planning related generally to Ms. Young's failure to develop a lesson plan that filled the entire class period and her failure to adhere to the lesson plan she had prepared. The deficiencies in techniques of instruction related generally to the lack of appropriate instructional materials and methods; Ms. Young's failure to use any media other than the chalkboard to demonstrate lab activity (it was noted that she did not use the chalkboard effectively); and her failure to correct wrong answers and to clarify the confusion of individual students and of the class as a whole. The deficiencies in assessment techniques related generally to Ms. Young's failure to develop effective tools to assess instructional objectives and to use more than one kind of assessment tool. Mr. Boydston and Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by May 16, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the deficiencies cited.

24. Another external observation of Ms. Young's teaching

    
    

    performance was conducted on May 28, 1997, by Thomas Sippio, an assistant principal at North Dade, and Carnell White, the Director of District I of the school district. Ms. Young was

    observed while she was teaching a seventh grade science class. In the Record of the observation, Mr. Sippio and Mr. White identified two deficiencies each in parts B, F, and G of the techniques of instruction category. These deficiencies in techniques of instruction related generally to Ms. Young's failure to provide feedback to the students or to suggest ways that the students could improve their performance; her failure to establish the necessary background for the planned lesson or to complete the lesson within the class period; and her failure to communicate clearly with the students and to explain matters about which the students were confused.

    Mr. Sippio and Mr. White included prescription plan activities for each deficiency identified, which were to be completed by September 22, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies.

25. On June 11, 1997, a Conference-for-the-Record was held with Ms. Young, Ms. Davis, and Ms. Rivero in attendance.3 As recited in the summary dated June 13, 1997, the purpose of the conference was to discuss Ms. Young's unacceptable performance and her future employment with the Miami-Dade County public school system. Ms. Young's performance to date was reviewed; she was offered assistance to help her improve her performance in the 1997-98 school year; she was advised

    that her teaching performance was rated unacceptable in her annual evaluation for the 1996-97 school year and that her salary was frozen as a result; she was informed that a teacher could be terminated from employment if two years of unremediated performance deficiencies were accumulated; and she was offered assistance from the Dade County School Referral Agency. According to the summary, Ms. Young acknowledged during the conference that she understood the seriousness of her position.

26. In her TADS Annual Evaluation for the 1996-97 school year, Ms. Young was rated unacceptable in the following Component A categories: preparation and planning; classroom management; techniques of instruction; and assessment techniques. Ms. Young was also rated unacceptable in Component B, the professional responsibility category, of the TADS. The annual evaluation was based on observations conducted on September 19, 1996; December 11, 1996; March 21, 1997; April 23, 1997; and May 28, 1997.

27. On October 10, 1997, Ms. Rivero conducted the first observation of Ms. Young's teaching performance for the 1997-

    98 school year. Ms. Young was observed as she taught a science class. In the Record of the observation, Ms. Rivero identified one deficiency in part B of the planning and preparation category and two deficiencies each in parts A and

    C and three deficiencies in part B of the classroom management category. The deficiency in preparation and planning was based on Ms. Rivero's observation that Ms. Young completed less than half of the lesson outlined in the lesson plan for that class. The deficiencies in classroom management were related generally to Ms. Young's failure to use class time efficiently, her failure to redirect or effectively redirect students who were either disruptive or off-task, and her failure to make her students aware of her expectations regarding their behavior. Ms. Rivero included prescription plan activities for each deficiency identified, which were to be completed by November 3, 1997. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies.

28. On December 17, 1997, a Mid-Year Conference-for-the- Record was held, with Ms. Young, Ms. Davis, Ms. Rivero, and Ms. Vagias, Ms. Young's union steward, in attendance. As recited in the summary, the purpose of the conference was to discuss Ms. Young's unacceptable performance assessment to date and her future employment with the Miami-Dade County public school system. Ms. Young was reminded that she had received an unacceptable observation on October 16, 1997, followed by an acceptable observation on December 11, 1997, which resulted in a first summative assessment of

    unacceptable. Ms. Young was advised that, because her TADS annual evaluation for the 1996-97 school year was unacceptable, she needed two consecutive acceptable summative decisions for remediation of the cited performance deficiencies. She was further advised that her employment with the school system could be terminated if she had unremediated performance deficiencies for two consecutive years. According to the summary, Ms. Young acknowledged at the conference that she understood the seriousness of her situation and knew what she needed to do to remediate the performance deficiencies.

29. On February 20, 1998, Thomas Sippio, an assistant principal of North Dade, conducted a formal observation of Ms. Young's teaching performance as she taught a science class. In the Record of the observation, Mr. Sippio identified two deficiencies each in parts B and C of the classroom management category and three deficiencies each in parts A, B, and H, four deficiencies in part C, and two deficiencies each in parts F and G of the techniques of instruction category. The deficiencies in classroom management related generally to Ms. Young's failure to redirect students who were off-task and her failure to make clear to the students her expectations regarding their behavior. The deficiencies in techniques of instruction

    related generally to Ms. Young's failure to use materials and methods appropriate for the needs of her students; her failure to explain the lesson, to acknowledge many students who had questions, and to answer adequately those questions she did address; her failure to provide feedback to students about the strengths and weaknesses in their performance; her failure to provide information necessary for the students to understand the lesson; and her failure to clarify the confusion of most students in the class. Mr. Sippio included prescription plan activities for each deficiency identified, which were to be completed by March 16, 1998. Ms. Young chose not to provide an explanation of her performance in the Record with respect to the cited deficiencies.

30. On March 9, 1998, a Conference-for-the-Record was held, with Ms. Young, Ms. Davis, Ms. Rivero, and Ms. Vagias in attendance. As recited in the summary dated March 16, 1998, the purpose of the conference was to discuss Ms. Young's performance to date, her prescriptive status, and her future employment with the Miami-Dade County public school system. Ms. Young was reminded that she had received an unacceptable observation on October 16, 1997, followed by an acceptable observation on December 11, 1997, which resulted in a first summative assessment of unacceptable and that she had received an unacceptable observation on February 20, 1998, which

    resulted in a second summative assessment of unacceptable.

    
    

    Ms. Young was further advised that, because she had been rated unacceptable in her TADS annual evaluation for the 1995-96 school year, remediation of her cited deficiencies would be accomplished only when she had received two consecutive summative ratings of acceptable. Ms. Young was advised that her employment with the school system could be terminated if she had unremediated performance deficiencies for two consecutive years. According to the summary, Ms. Young was also told that she would receive an unacceptable annual evaluation for the 1997-98 school year if she did not remediate all cited deficiencies. Finally, Ms. Young was given an EMP-7 Instructional Form, in which it was recommended that she be terminated at the end of the 1997-98 school year. Ms. Young voiced several concerns during the conference, and these were addressed by Ms. Davis and Ms. Rivero.

31. The letter from the Superintendent of Schools

    
    

    notifying Ms. Young that he was recommending that her professional service contract not be renewed for the 1998-99 school year was dated March 12, 1998. The School Board considered the recommendation at its meeting on March 18, 1998, and decided not to renew Ms. Young's professional service contract and not to reappoint her to a teaching position for the 1998-99 school year.

32. Nonetheless, because Ms. Young had two consecutive summative assessments in which her teaching performance as rated unacceptable, an external observation of her teaching performance was conducted on May 5, 1998, by Ms. Davis and Dr. Gustavo Loret de Mola, a District Science Supervisor. In

    the Record of the observation, Ms. Davis and Dr. Loret de Mola identified one deficiency in part A and three deficiencies in part B of the knowledge of subject matter category; one deficiency in part A and two deficiencies in part C of the classroom management category; and four deficiencies in part F and two deficiencies in part H of the techniques of instruction category. The deficiencies in knowledge of subject matter were related generally to the existence of substantive errors in Ms. Young's presentation and to her failure to present information in the appropriate sequence, her failure to address important aspects of the topic being presented, and her failure to present information on more than one cognitive level. The deficiencies in classroom management related generally to Ms. Young's failure to begin the lesson promptly, her failure to make her expectations regarding behavior clear to the students, and her failure to deal appropriately with students who were disruptive and/or off- task. The deficiencies in techniques of instruction related generally to Ms. Young's failure to establish a background for

    the lesson, her failure to include necessary topics, her failure to present information in an appropriate sequence, and her failure to assess and appropriately address her students' confusion. Dr. Loret de Mola and Ms. Davis included prescription plan activities for each deficiency identified, which were to be completed by September 25, 1998. Ms. Young chose not to provide an explanation for her performance in the Record with respect to the cited deficiencies.

33. Ms. Young received a rating of unacceptable in her TADS annual evaluation for the 1997-98 school year, and the Superintendent's non-reappointment nomination was not rescinded.

34. In her defense, Ms. Young testified that she always prepared good lesson plans and kept order in her classroom. She testified that she always did every activity prescribed for her in the records of the observations in which her performance was found unacceptable. Finally, Ms. Young attributes the unacceptable observations to bad motives on the part of the persons conducting the observations.4 Ms. Young's observations regarding the motives of those persons evaluating her performance are rejected as contrary to the more credible proof presented by the School Board.

35. The evidence presented by the School Board is sufficient to establish that Ms. Young's teaching performance

    during the 1996-97 and 1997-98 school years was unsatisfactory and remained unremediated at the end of the 1997-98 school year. The evidence is also sufficient to establish that

    Ms. Young was provided with the required notices of her unsatisfactory performance and was offered appropriate assistance and inservice training opportunities during the 1996-97 and 1997-98 school years to assist her in improving her performance.

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

37. The School Board voted not to renew Ms. Young's professional service contract and to terminate her employment as a teacher in the Miami-Dade County public school system. Consequently, it has the burden of proof and must establish by a preponderance of the evidence that there are sufficient grounds to take such action. 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).

38. Section 231.36, Florida Statutes (1997), governs the School Board's contract with Ms. Young and its contracts with

    instructional staff, generally. Section 231.36 provides in pertinent part:

    (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. Each member of the instructional staff who completes the following requirements prior to July 1, 1984, shall be entitled to and shall be issued a continuing contract in the form prescribed by rules of the state board pursuant to s. 231.36, Florida Statutes 1981. Each member of the instructional staff who completes the following requirements on or after July 1, 1984, shall be entitled to and shall be issued a professional service contract in the form prescribed by rules of the state board as provided herein:

    1. The member must hold a professional

       certificate as prescribed by s. 231.17 and rules of the State Board of Education.

    2. The member must have completed 3 years of probationary service in the district during a period not in excess of 5 successive years, except for leave duly authorized and granted.

    3. The member must have been recommended by the superintendent for such contract and reappointed by the school board based on successful performance of duties and demonstration of professional competence.

    
    

    * * *

    
    

    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. An employee who holds a professional service contract on July 1, 1997, is subject to the procedures set forth in paragraph (f) during the term of the existing professional service contract. The employee is subject to the procedures set forth in s. 231.29(3)(d) upon the next renewal of the professional service contract; however, if the employee is notified of performance deficiencies before the next contract renewal date, the procedures of s. 231.29(3)(d) do not apply until the procedures set forth in paragraph

    2. have been exhausted and the professional service contract is subsequently renewed.

    (f) The superintendent shall notify an employee who holds a professional service contract on July 1, 1997, 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, 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 school board's election in accordance with one of the following procedures:

       1. A direct hearing conducted by the school board within 60 days of receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. 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

       2. A hearing conducted by an

    administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days of receipt of the written appeal in accordance with chapter 120. The recommendation of the administrative law judge 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 administrative law judge's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.

    
    

39. Section 231.29, Florida Statutes (1997), describes the assessment procedures and criteria that are used to determine the performance level of instructional staff, among others, and provides in pertinent part:

    (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 by the school district. The Department of Education must approve each district's instructional personnel assessment system.

    
    

    * * *

    
    

    1. The assessment procedure for instructional personnel shall comply with, but shall not be limited to, the following requirements:

       1. An assessment shall be conducted for each employee at least once a year. The assessment shall be based upon sound educational principles and contemporary research in effective educational practices. The assessment must use data and indicators of improvement in student performance and may consider results of peer reviews in evaluating the employee's performance. The assessment criteria must include, but are not limited to, indicators that relate to the following:

          1. 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. Ability to communicate with parents.

          6. Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.

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

       3. The individual responsible for supervising the employee must assess the employee's performance. The evaluator must submit a written report of the assessment to the superintendent for the purpose of reviewing the employee's contract. The evaluator must submit the written report to the employee no later than 10 days after the assessment takes place. The evaluator

    must discuss the written report of assessment with the employee. 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.[5]

40. Procedures for the evaluation of teachers are also set forth in Article XIII, Section 2, of the Contract between the School Board and the United Teachers of Dade, and these provisions are consistent with the requirements of Section 231.29, Section 231.36(3)(e) and (f), and TADS. The Contract provides in Article XIII, Section 2: "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 the Contract."

41. Notwithstanding the reference in this contract provision to "just cause," the decision not to renew a professional service contract for a teacher's unsatisfactory performance is not a termination for "just cause," as that term is used in Section 231.36(1)(a). As used in the statute, termination for "just cause" refers to terminations during the term of a teacher's contract; the grounds for termination are limited to those stated in Section 231.36(1)(a) and the statutory procedures which must be followed to effect such a termination are set forth in Section 231.36(6). On the other hand, the circumstances in which the superintendent can

    recommend to the School Board that a teacher's professional service contract not be renewed and the procedures which must be followed to effect the non-renewal of a professional service contract which was effective on July 1, 1997, are found in Section 231.36(3)(e) and (f), quoted above in paragraph 38. See Jack Taylor v. Carmen Hernandez, DOAH Case No. 97-1855, 1997 WL 1053318 (Recommended Order issued

    September 26, 1997).

    
    

42. The issues in a proceeding involving "unsatisfactory performance" under Section 231.36(3)(e) and (f), Florida Statutes (1997), are whether the teacher's performance was unsatisfactory prior to the teacher's being charged with unsatisfactory performance, whether the teacher's performance continued to be unsatisfactory after he or she was so charged, whether the teacher was given the notices required by Section 231.29, Florida Statutes (1997), and whether the teacher was provided with the assistance and inservice training opportunities required by Section 231.29. Based on the findings of fact set forth above, the School Board has satisfied its burden of proving by a preponderance of the evidence that Ms. Young's performance was unsatisfactory during the 1996-97 school year and that her performance continued to be unsatisfactory during the 1997-98 school year, which was her remedial year; that Ms. Young received all

required notices; and that Ms. Young was consistently provided the opportunity to obtain assistance and inservice training to help her improve her teaching performance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining its decision not to renew Loretta L. Young's professional service contract for the 1998-99 school year.

DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

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 3rd day of August, 1999.

ENDNOTES

1 A summative assessment is based on the results of two observations. The first and second observations conducted in a school year are considered together to arrive at the first summative assessment, and the third observation is considered together with the second observation to arrive at the second summative assessment. If both summative assessments are positive, the process ends. If both summative assessments are unacceptable, then an external review is conducted prior to preparation of the teacher's annual evaluation.

In an external review, two school district personnel observe a teacher's performance in the classroom at the same time. They do not sit together in the classroom during the

observation. Without consulting with one another, each prepares a post-observation report of deficiencies in the teacher's performance that he or she identified during the observation. The two observers then compare their reports, and, if they both found deficiencies in the same area, the deficiencies are described in the Record of Observed Deficiencies/Prescription for Performance Improvement and prescription plan activities are developed by both observers.

If a teacher's first observation of the school year is unacceptable and the second is acceptable, the first summative assessment is unacceptable. In this situation, two additional observations must be conducted, both of which must be acceptable in order for the teacher to receive two consecutive acceptable summative assessments. If one observation is unacceptable, then the summative assessment is unacceptable, and an external review is done prior to preparation of the teacher's annual evaluation.

2 This is the term used to refer to a teacher who is expected to complete activities prescribed to assist him or her in improving teaching behaviors in which the teacher has been found deficient.

3 Ms. Young elected not to have a union representative present.

4 Ms. Young testified that she believes the observations she received as a teacher at North Dade are "not justifiable. There's a lot of sabotage and lynching, and frequent lying going on within these observations." (Transcript, 12/18/98, at 70.)

5 Although Section 231.29(3)(d) sets forth the procedures which must be followed when an employee is not performing satisfactorily, those procedures are not applicable in this case because Ms. Young was under a professional service contract as of July 1, 1997. See Section 231.36(3)(e), Florida Statutes (1997).

COPIES FURNISHED:

Luis M. Garcia, Esquire

Miami-Dade County School Board 1450 Northeast 2nd Avenue Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade

2929 Southwest 3rd Avenue (Coral Way) Miami, Florida 33129

Roger C. Cuevas Superintendent

Miami-Dade County School Board

1450 Northeast Second Avenue, No. 403

Miami, Florida 33132-1308

Tom Gallagher Commissioner of Education

The Capitol, Plaza Level 08 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.

1 A summative assessment is based on the results of two observations. The first and second observations conducted in a school year are considered together to arrive at the first summative assessment, and the third observation is considered together with the second observation to arrive at the second summative assessment. If both summative assessments are positive, the process ends. If both summative assessments are unacceptable, then an external review is conducted prior to preparation of the teacher's annual evaluation.

In an external review, two school district personnel observe a teacher's performance in the classroom at the same time. They do not sit together in the classroom during the observation. Without consulting with one another, each prepares a post-observation report of deficiencies in the teacher's performance that he or she identified during the observation. The two observers then compare their reports, and, if they both found deficiencies in the same area, the deficiencies are described in the Record of the observation and prescription plan activities are developed by both observers.

If a teacher's first observation of the school year is unacceptable and the second is acceptable, the first summative assessment is unacceptable. In this situation, two additional observations must be conducted, both of which must be acceptable in order for the teacher to receive two consecutive acceptable summative assessments. If one observation is unacceptable, then the summative assessment is unacceptable, and an external review is done prior to preparation of the teacher's annual evaluation.

2 This is the term used to refer to a teacher who is expected to complete activities prescribed to assist him or her in

improving teaching behaviors in which the teacher has been found deficient.

3 Ms. Young apparently elected not to have a union representative present.

4 Ms. Young testified that she believes the observations she received as a teacher at North Dade are "not justifiable. There's a lot of sabotage and lynching, and frequent lying going on within these observations." (Transcript, 12/18/98, at 70.)

5 Although Section 231.29(3)(d) sets forth the procedures which must be followed when an employee is not performing satisfactorily, those procedures are not applicable in this case because Ms. Young was under a professional service contract as of July 1, 1997. See Section 231.36(3)(e), Florida Statutes (1997).

Docket for Case No: 98-001537

Orders for Case No: 98-001537