STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-1918

)

MICHAEL J. AKPAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on October 15, 1998, in Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carlos E. Mustelier, Esquire

Miami-Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

This is a case in which the Petitioner seeks to terminate the Respondent's employment contract as a teacher. The grounds upon which the proposed action is based are alleged in a Notice of Specific Charges of Unsatisfactory Performance dated May 13, 1998.

PRELIMINARY STATEMENT

At the final hearing on October 15, 1998, the Petitioner presented the testimony of four witnesses. The Petitioner's Exhibits numbered 1 through 9, 11, 13, 14, 16 through 18, and

20 through 22, were offered and admitted into evidence. The Respondent testified on his own behalf, and also presented the testimony of one other witness. The Respondent's Exhibits numbered 1 through 11 were offered and admitted into evidence.

At the conclusion of the hearing the parties were allowed 14 days from the filing of the transcript within which to file their proposed recommended orders.

The Transcript was filed with the Division of Administrative Hearings on December 11, 1998. Thereafter both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Petitioner was a duly-constituted School Board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida.

2. At all times material to this case, the Respondent, Michael J. Akpan, was an employee of the School Board of Miami- Dade County, Florida. At all times material to this case, the

   Respondent possessed an annual employment contract as a teacher

   and was subject to the Memorandum of Understanding between United Teachers of Dade and the School Board.

3. At all times material to this case, the Respondent was certified to teach middle grades science. This certification allows the Respondent to teach certain science courses to ninth and tenth grade students.

4. During the 1997/1998 school year, the Respondent was teaching at North Miami Senior High School (NMSHS).1 The Respondent was placed in an alternative education assignment in which the students were at risk of dropping out of school.

   During that school year, the Respondent had difficulty controlling the conduct of students in his classroom. There were numerous instances of student misconduct and disruption of such gravity as to require intervention by school security personnel and assistant principals.

5. Teachers employed by the Petitioner School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between the Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate the Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and teachers, whether new or veteran. TADS observers record deficiencies which are observed during the observation period and then provide a prescription for

   performance improvement.2 A post-observation conference is held

   with the teacher to discuss the prescription. Then the cycle of assessment/prescription begins again.

6. Under the TADS procedure as incorporated into the labor contract between the School Board and UTD, teachers who are in Annual Contract Two status, such as the Respondent, must have a minimum of two observations during each school year. One of those two observations must be done by the principal.

7. During its 1997 session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted the implementation of TADS, the Petitioner and UTD negotiated a Memorandum of Understanding with respect to the implementation of the new procedures required by the 1997 statutory amendments. The Memorandum of Understanding is an amendment to the labor contract between the Petitioner and the UTD. The Memorandum of Understanding reads as follows, in pertinent part:

   Performance Probation Period

   
   

   1. Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days, conduct a conference-for-the-record which addresses:

      results of the observation/assessment, or Category VII infraction,

      stipulations of the Performance Probation (90 calendar days excluding school holidays and vacations), which

      begins upon the employee's receipt of written plan of assistance (prescription),

      the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time,

      future required observations/assessments and

      possible employment actions.

      
      

   2. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation.

      
      

   3. The annual evaluation decision will be based upon the result of the last observation/assessment as illustrated in the chart titled, Examples of Assessments/ Observations and Annual Evaluation/Employment Contract Decisions for Employees on Performance Probation.

      
      

      In the event that an employee is absent on authorized leave in excess of 10 consecutive workdays, the Performance Probation is suspended until the employee returns to active duty, at which time it resumes.

      
      

      If the Performance Probation has not been completed during the current year of employment, the annual evaluation is withheld pending completion of the Performance Probation during the subsequent year of employment.

      
      

      Teachers who have not completed the requirements of the Performance Probation are ineligible for summer school employment.

      
      

      Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent.

      Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board

      continue or terminate his or her employment contract.

      
      

      If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing.

      
      

8. On October 13, 1997, the Respondent was observed in his classroom by Assistant Principal Carrie Figueredo for one hour. The Respondent was found to be deficient in several categories and his performance was assessed as unsatisfactory. The observed deficiencies on this occasion included a failure to maintain appropriate classroom management. More than 90 percent of the students were "off task." Most of the students were either sleeping, filling out job applications, or otherwise inattentive.

9. On October 20, 1997, Assistant principal Figueredo held a post-observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities, which it was hoped would help him improve his performance as a classroom teacher.

10. On November 21, 1997, the Respondent was formally observed in his classroom by Principal Charles Hankerson. Principal Hankerson assessed the Respondent's performance as unsatisfactory. Among other things, Principal Hankerson observed that the Respondent continued to have serious deficiencies in the area of classroom management.

11. On December 2, 1997, Principal Hankerson held a

    conference for the record with the Respondent to address his unsatisfactory performance. During that conference Principal Hankerson made recommendations as to how the Respondent might improve the specific areas of his unsatisfactory performance, and also discussed the Respondent's future employment status with Petitioner School Board. The Respondent was placed on a Performance Probation status in accordance with Section 231.29(3)(d), Florida Statutes, and he was provided with a plan of assistance to help him correct his deficiencies within the prescribed time frame. The Respondent's 90-day probation period began on December 8, 1997, which is the day on which he was furnished with a copy of the written plan of assistance.

    March 8, 1998. was the ninetieth day following December 8, 1997. During the Respondent's 90-day probation period there were at least 12 school holidays and school vacation days.3 Accordingly, the Respondent's probation period extended until at least

    March 20, 1998.4

12. On January 20, 1998, the Respondent was observed in his classroom by Assistant Principal William Henderson. Assistant Principal Henderson observed the Respondent for 60 minutes. During this observation, the Respondent was found deficient in techniques of instruction. Assistant Principal Henderson observed that the Respondent was not addressing the needs of the students, that there was confusion as to the assignment, and that the Respondent wasted too much time initiating the lesson.

13. On January 27, 1998, Assistant Principal Henderson had a post-observation conference with the Respondent, during which he discussed the Respondent's deficiencies, and provided the Respondent with a number of prescriptive activities to assist the Respondent in correcting his deficiencies. Among those activities were, that the Respondent should meet with his department chairperson and review strategies which would be appropriate for the students assigned to the Respondent's classes. The Respondent was also directed to submit lesson plans to Assistant Principal Henderson.

14. On February 27, 1998, the Respondent was observed in his classroom by Assistant Principal Figueredo for two hours. Assistant Principal Figueredo found the Respondent to be deficient in several areas, including classroom management.5 This was Assistant Principal Figueredo's second observation of the Respondent. While she noted some minimal improvement since her earlier observation, the Respondent's performance on February 27, 1998, was still not anywhere near an acceptable level.

15. On March 5, 1998, Assistant Figueredo held a post- observation conference with the Respondent, discussed the Respondent's deficiencies with him, and provided the Respondent with a number of prescriptive activities in order to assist the Respondent in correcting his deficiencies. Among those prescriptive activities was a requirement that the Respondent

    develop lesson plans to be reviewed by Assistant Principal Figueredo's and by the Respondent's department chairperson. The Respondent was also directed to maintain a time log to determine when students arrived. Additionally, the Respondent was assigned several exercises in the Activities Manual to assist him in the area of teacher/student relationships.

16. On March 27, 1998, Principal Charles Hankerson observed the Respondent in the classroom. On this occasion Principal Hankerson found the Respondent to be deficient in three categories: classroom management, techniques of instruction, and teacher/student relationships. This was the confirmatory observation, which did not require a prescription.

17. The assistance provided to the Respondent through his prescriptions was appropriate assistance related to the Respondent's observed deficiencies. The Respondent completed all of the prescriptions. Nevertheless, the Respondent continued to fail to plan for lessons, continued to fail to manage his students, and continued to fail to interact appropriately with his students. These continued failures resulted in a failure of the Respondent to meet the instructional needs of his students.

18. As a result of the Respondent's unsatisfactory performance during each of the last three observations described above, Principal Hankerson notified the Superintendent of Schools that the Respondent had not satisfactorily corrected his performance deficiencies during the probation period, and

    Principal Hankerson recommended that the Respondent's employment be terminated.

19. On April 2, 1998, the Superintendent of Schools timely notified the Respondent that he was going to recommend that the School Board terminate his employment contract because he had failed to satisfactorily correct his performance deficiencies during his period of probation.

    CONCLUSIONS OF LAW

    
    

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

21. Section 231.29, Florida Statutes, 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.

       4. If an employee is not performing his

    or her duties in a satisfactory manner, the evaluator shall notify the employee in writing of such determination. The notice must describe such unsatisfactory performance and include notice of the following procedural requirements:

    1. Upon delivery of a notice of unsatisfactory performance, the evaluator must confer with the employee, make recommendations with respect to specific areas of unsatisfactory performance, and provide assistance in helping to correct deficiencies within a prescribed period of time.

    2. The employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days from the receipt of the notice of unsatisfactory performance to demonstrate corrective action. School holidays and school vacation periods are not counted when calculating the 90-calendar-day period. During the 90 calendar days, the employee

       must be evaluated periodically and apprised of progress achieved and must be provided assistance and inservice training opportunities to help correct the noted performance deficiencies. At any time during the 90 calendar days, the employee may request a transfer to another appropriate position with a different supervising administrator; however, a transfer does not extend the period for correcting performance deficiencies.

    3. Within 14 days after the close of the

    90 calendar days, the evaluator must assess whether the performance deficiencies have been corrected and forward a recommendation to the superintendent. Within 14 days after receiving the evaluator's recommendation, the superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the superintendent will recommend that the school board continue or terminate his or her employment contract. If the employee wishes to contest the superintendent's recommendation, the employee must, within 15 days after receipt of the superintendent's recommendation, submit a written request for a hearing. Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:

    * * *

    
    

    b. 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 after 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.

22. The Petitioner bears the burden of proof in this case to establish that the Respondent failed to correct unsatisfactory performance as contemplated by the statutory assessment guidelines. It has met that burden. In this case, the Respondent failed to correct the deficiencies in performance which were clearly outlined to him. Moreover, despite efforts to remedy the deficiencies, the Respondent failed to achieve sufficient improvement.

23. The Petitioner has established that it complied with the statutory criteria found in Section 231.29, Florida Statutes, as well as with the requirements of the Memorandum of Understanding.6 Accordingly, the School Board was authorized to terminate the Respondent's annual contract employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the action to terminate Respondent's annual contract.

DONE AND ENTERED this 5th day of April, 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 5th day of April, 1999.

ENDNOTES

1/ The Respondent had previously taught in the same school system for most of the 1995/1996 school year. As a result of illness, the Respondent did not teach during the 1996/1997 school year.

2/ The "prescription" is typically a list of activities the teacher is advised to engage in to improve performance in the deficient areas. It often involves such activities as reading materials about specific aspects of successful teaching, attending classes about successful teaching methods, discussing relevant matters with administrators or other successful teachers, and observing successful teachers in the classroom.

3/ The last eight weekdays of January, 1997, and the first two weekdays of January 1998, were "recess" days for the winter and new year holidays. January 19 and February 16, 1998, were paid holidays. It is not clear whether the two days of the intervening weekend during the December/January recess should also be added to the Respondent's probation period.

4/ If the intervening weekend mentioned immediately above were to be added to the Respondent's probation period, the probation period would have lasted until March 23, 1998.

5/ During the February 27, 1998, observation by Assistant Principal Figueredo, the Respondent did not have a lesson plan, did not begin the lesson promptly, did not take any action regarding students who arrived late, and did not deal promptly or effectively with students who were misbehaving in class.

6/ In reaching this conclusion, the Respondent's arguments regarding procedural shortcomings have not been overlooked. The Respondent argues that the School Board cannot properly terminate his contract because the School Board did not follow all of the procedural steps required by the Memorandum of Understanding.

This argument fails for at least two reasons. First, the argument is based on an incorrect interpretation of the language of the Memorandum of Understanding. In the portion of the Memorandum of Understanding that addresses probation, there is no requirement that either of the two required observations during

the probation period be conducted by the teacher's principal. Second, even if such a requirement were to be read into the probation portion of the Memorandum of Understanding, the Respondent would not be entitled to a different outcome in this case. The Respondent has not shown any prejudice by reason of the fact that both of his probation period observations were by assistant principals. To the contrary, an observation by his principal initiated the Respondent's probationary status, and an observation by his principal was the confirmatory observation that led to the recommendation that the Respondent's contract be terminated. See Krischer v. School Board of Dade County, 555 So. 2d 436 (Fla. 3d DCA 1990).

COPIES FURNISHED:

Carlos Mustelier, Jr., Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade 2929 Southwest Third Avenue Miami, Florida 33129

Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

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, 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.

Docket for Case No: 98-001918

Orders for Case No: 98-001918