vs. ) Case No. 98-3452
Respondent. )
A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, in Sanford, Florida, on November 5, 1998. The following appearances were entered:
For Petitioner: Ned N. Julian, Jr., Esquire
For Respondent: Ronald G. Meyer, Esquire
Meyer and Brooks, P.A. Post Office Box 1547
Whether the Petitioner has just cause to terminate the Respondent from her employment with the school district for gross insubordination and willful neglect of duty in violation of Sections 231.36(1)(a) and (6)(a), Florida Statutes (1997).
This matter arose when the Respondent was notified by letter dated March 5, 1998, from the Superintendent that he would recommend to the School Board that the Respondent be terminated. Prior to the Board's taking action on such recommendation, the Respondent applied for and was granted Family Medical Leave Act leave for the balance of the 1997-98 school year. On July 1, 1998, at the conclusion of the Respondent's leave, the Superintendent once again notified the Respondent that he would recommend her termination to the School Board. The School Board approved that recommendation and the Respondent requested an administrative hearing. A Petition for Termination was filed on July 27, 1998, and this matter was referred to the Division of Administrative Hearings for a formal hearing. The case was initially assigned to Judge Mary Clark and later reassigned to the undersigned. The formal hearing was held on November 5, 1998.
At the hearing, the Petitioner called four witnesses and offered 14 exhibits. The Respondent testified in her own behalf and offered 13 exhibits. At the conclusion of the hearing, the Administrative Law Judge granted the parties additional time to file proposed recommended orders. A transcript of the proceeding was not filed. Each party timely filed proposed recommended orders. Each proposal has been given careful consideration in the preparation of this order.
The Respondent, Jane Scott, was employed by the Petitioner, Seminole County School Board, as a teacher at Jackson Heights Middle School, serving pursuant to a professional service contract of employment.
The employment relationship between the School Board and the Respondent is subject to the terms and conditions of a collective bargaining agreement between the School Board and the Seminole Education Association (SEA), which is effective for the period July 1, 1997, through June 30, 2002.
The applicable collective bargaining agreement provides that dismissal or disciplinary action for a professional service contract teacher shall only be for just cause in compliance with Florida Statutes.
Paul J. Hagerty, as Superintendent of Public Schools for Seminole County, Florida, is the executive officer of the School Board. Article IX, Section 5, Florida Constitution, and Section 230.321(1), Florida Statutes
The Superintendent is authorized to recommend to the School Board the termination of a teacher for just cause.
The School Board of Seminole County, Florida, is the administrative agency head charged with the operation, control, and supervision of all public schools within Seminole County,
Florida.
The School Board of Seminole County, Florida, is authorized to terminate the Respondent for misconduct.
During the 1997-1998 school year, Respondent's evaluating supervisors at Jackson Heights Middle School were Doreen Rochefort, an assistant principal, and Bill Gibson, the principal.
All teachers at Jackson Heights Middle School were required to prepare and file lesson plans on the Friday in advance of the week in which the lesson plans were to be used, and prepare and file a set of emergency lesson plans to be used by the substitute teacher when a teacher is absent. They were also required to prepare and file a course syllabus for each course taught.
The requirement for emergency lesson plans and weekly lesson plans was published in the faculty handbook and reviewed at the start of the school year.
Respondent was aware of the requirement for preparation and filing of lesson plans. On August 12, 1997, Respondent was reminded that weekly lesson plans were to be filed in the lesson plan folder on the Friday preceding the week in which the lesson plans were to be used and that Respondent's emergency lesson plans were to be filed by Monday, August 18, 1997.
On September 3, 1997, Respondent was provided with a
memorandum outlining expectations regarding emergency lesson plans.
On December 11, 1997, Respondent was advised that she had provided lesson plans for only four of the sixteen weeks of instruction. In addition, the course overview, syllabus and grading system had been provided only after several requests.
On December 11, 1997, Respondent was again directed to file her lesson plans.
On December 11, 1997, Respondent was directed to attend in-service training programs on lesson plans and student discipline.
On December 5, 1997, Respondent was observed to have left her classroom unattended, with the result that two students in the class had become involved in an altercation.
On December 11, 1997, Respondent was advised that she had failed to provide acceptable supervision for students in her charge and was directed not to leave students unsupervised.
On December 11, 1997, the Respondent's supervising administrator, Doreen Rochefort, advised Respondent that she would be available to provide Respondent assistance in improving in the areas of preparation and filing of lesson plans, student discipline and supervision, and other areas of noted deficiencies in performance.
On or about December 12, 1997, Respondent was offered additional assistance by her supervising administrator by
enrollment in two in-service training programs designed to assist Respondent with discipline and lesson plans.
On January 29, 1998, the Respondent's supervising administrator again advised Respondent that she would be available to provide Respondent assistance in improving in the areas of preparation and filing of lesson plans, student discipline and supervision, and other areas of noted deficiencies in performance.
Respondent's supervising administrator treated Respondent no differently than other teachers under the administrator's supervisory authority.
Respondent failed to attend the in-service training programs designed to assist Respondent with discipline and lesson plans, as scheduled.
On January 29, 1998, Respondent was advised that she had provided lesson plans for only four of the 22 weeks of instruction as she was directed to do on December 11, 1997.
On January 29, 1998, Respondent was directed to file her lesson plans by February 6, 1998.
On January 29, 1998, Respondent was advised that she had continued to provide inadequate supervision for students and was directed not to leave students unsupervised.
Respondent failed to file lesson plans on February 6, 1998, as previously directed by her supervising administrator.
On February 11, 1998, Respondent was given a written
reprimand for failure to file lesson plans as required by school policy and previous directives and for leaving Respondent's class unattended on February 9, 1998, after being advised not to do so on January 29, 1998. Respondent was also reminded of the requirement for filing lesson plans as published in the faculty handbook.
In response to a handwritten note from Respondent, Jane Scott was given a written memo on February 12, 1998, reminding her of the requirement for lesson plans as spelled-out in the faculty handbook, reminding her that lesson plans had been requested on at least four separate occasions, to wit: November 18, 1997, December 15, 1997, January 27, 1998, and February 6, 1998, and advised that she was missing lesson plans for the year, with the exception of the weeks of September 15, September 29, October 13, and an undated week. Respondent was directed to have lesson plans for the school year by February 20, 1998.
On February 23, 1998, Respondent was directed to file lesson plans upon Respondent's return to school after being out of school on February 20 and 23, 1998.
Respondent failed to prepare and file lesson plans for emergency lesson plan prior to Respondent's suspension with pay on March 6, 1998, in the face of numerous directives to do so.
Respondent's course syllabus and overview were actually prepared by Gay Parker, the president of the teachers' union and not the Respondent.
Other teachers who were missing lesson plans or emergency lesson plans were directed to prepare and/or file the missing plans and did so.
Lesson plans are material and relevant to a teacher's performance in the classroom and a supervising administrator's ability to evaluate a teacher's compliance in teaching the prescribed curriculum, as to actual teaching of the prescribed content, proper sequencing of material taught, and appropriate pace of presentation of the material.
An emergency plan is necessary so that a substitute teacher will have a basis for teaching a class in the event of a teacher's unplanned absence from the classroom and inability to provide the substitute with regular lesson plans for the period of absence.
On February 11, 1998, Respondent was instructed not to send students to the office without referrals.
On February 26, 1998, Respondent, although instructed to do otherwise, sent at least three and possibly four students to the office without referrals.
On February 26, 1998, the Respondent was instructed that the students sent to the office without referral would be returned to Respondent's class.
The purpose of a referral is to advise the office personnel handling the matter as to the nature of the student's misconduct and the necessity to send the student out of class.
On January 27, 1998, Respondent sent a student out of her class for the duration of the lesson without materials and without supervision.
On February 9, 1998, Mr. Gibson, the principal of Jackson Heights Middle School, observed that Respondent was not present in her classroom when he stopped by for a class visit.
Respondent had sufficient textbooks for both a classroom set and a "home use" set.
The purpose of a class set and a "home set" of textbooks is to avoid the necessity of students carrying around heavy books all day, transporting books to and from home, to ensure that students will have books for homework assignments and to assure that students will always have books in class to avoid problems that occur when students leave their books at home.
Subsequent to Respondent's suspension, it was discovered that Respondent had not distributed books to students for home use.
Distribution of books for home use is not optional with the teachers.
In addition to the assistance provided by Respondent's supervising administrator, Respondent also received the assistance of Respondent's teacher's union president.
Respondent's assertion that she had prepared lesson plans in an on-going manner but failed to turn them in a timely manner; that the assistant principal "papered" Respondent's file
with negative information; and, that she was depressed during this time period which contributed to her neglect of duty and insubordination is not credible.
In March 1998, the Respondent applied for and was granted Family Medical Leave Act leave for the balance of the 1997-98 school year.
Upon the Respondent's notifying the District that she was prepared to return to employment for the 1998-99 school year, the District proceeded with these termination proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause pursuant to Sections 120.57(1) and 120.569, Florida Statutes (1997).
The burden of proof is on the Petitioner to establish by a preponderance of the evidence that the disciplinary action it proposes is justified. Dileo vs. School Board of Dade County,
569 So. 2d 883 (Fla 3d DCA 1990); Allen vs. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); and McNeill vs. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996).
The standard for the termination of a teacher holding a professional service contract is just cause, including but not limited to gross insubordination and willful neglect of duty. Sections 231.36(1)(a) and 231.36(6)(a), Florida Statutes.
The Respondent may be terminated for gross insubordination, willful neglect of duty and inefficiency, provided that just cause is present. Article VIII, Section F, Collective Bargaining Agreement between the Seminole Education Association, Inc., and the School Board of Seminole County, Florida.
"Gross insubordination" or "willful neglect of duties" are defined in Rule 6B-4.009(4), Florida Administrative Code, as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Johnson vs. School Board of Dade County, Florida, 578 So. 2d 387 (Fla 3d DCA 1991).
Just cause for discipline is a reason which is rationally and logically related to an employee's conduct in the performance of the employee's job duties and which is concerned with inefficiency, delinquency, lack of leadership, poor role modeling, or misconduct. In Re Grievance of Towle, 665 A.2d 1169 (Pa. Cwlth 1990), Board of Directors of Des Moines Area Community College vs. Simons, 493 N.W.2d 879 (Iowa App. 1992), Grievance of Merrill, 559 A.2d 651 (Vt. 1988), and State ex rel Hathaway vs. Smith, 35 So. 2d 650 (Fla. 1948).
Just cause for termination/discipline is not limited by the exemplar list of offensive conduct set forth in Section 231.36(1)(a), Florida Statutes, as would be the case if Respondent were a continuing contract teacher subject to
discipline under Section 231.36(4)(c), Florida Statutes. Dietz vs. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994).
Neglect of duty is not measured in a vacuum or against a standard of perfection, but instead must be measured against a standard required of other teachers performing the same or similar functions. Respondent was not held to a different standard than other teachers at Jackson Heights Middle School. Schaffert vs. Lancaster County School District No. 0001, 581 N.W.2d 444, 451 (Neb. App. 1998).
Just cause for termination arises when the facts demonstrate a persistent pattern of disobeying or ignoring administrative policies and directives. Johnson vs. Board of Education of the Wooden-Crystal Lake Community School District, 353 N.W.2d 883, 886 (Iowa Ct.App. 1984).
The repeated directives given to Respondent that she prepare and file both lesson plans and an emergency plan as required by the faculty handbook and school policy was reasonable in nature.
Doreen Rochefort, as Respondent's supervising/evaluating administrator, was authorized to direct
Respondent to prepare and file both lesson plans and an emergency plan as required by the faculty handbook.
The Assistant Principal, as Respondent's supervising/evaluating administrator, was authorized to direct
Respondent to attend in-service training sessions on preparation of lesson plans and student discipline.
The directive given to Respondent to attend in-service training sessions on preparation of lesson plans and student discipline was reasonable in nature.
The repeated directives given to Respondent that she not send students to the office without a referral was reasonable in nature.
Respondent's supervising/evaluating administrator was authorized to direct Respondent not to send students to the office without a referral.
Respondent willfully failed or ignored directives from her supervising administrator to prepare and file lesson plans, to prepare and file an emergency plan, to provide proper supervision for students, and to not send students to the office without a referral.
Respondent's conduct amounted to gross insubordination.
Respondent's conduct in failing to prepare and file lesson plans, failing to prepare and file an emergency lesson plan, in sending students to the office without a referral, failure to distribute a "home use" textbook to Respondent's students, failure to participate in in-service training regarding preparation of lesson plans and student discipline, and disregard for principles of acceptable supervision of students, demonstrate
a failure to comply with standards applicable to all teachers at Jackson Heights Middle School.
Respondent's delinquency in preparing and filing a course syllabus and overview for Respondent's courses and her conduct in failing to prepare and file lesson plans, failing to prepare and file an emergency lesson plan, in sending students to the office without a referral, failure to distribute a "home use" text book to Respondent's students, failure to participate in
in-service training regarding the preparation of lesson plans and student discipline, and disregard for principles of acceptable supervision of students constitute just cause for termination.
Although Respondent testified that she was suffering from depression at all times relevant to the actions complained of by the Petitioner, there was no evidence that Respondent was diagnosed or treated for this condition during the relevant time period or that she informed her new assistant principal during the 1997-98 school year that depression was a contributing factor to her neglect of duty and insubordination.
RECOMMENDED that the Seminole County School Board enter a final order upholding the Superintendent's recommendation for the termination of Respondent, Jane Scott.
DONE AND ENTERED this 29th day of January, 1999, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1999.
Ned N. Julian, Jr., Esquire Seminole County Public Schools Education Support Center
Ronald G. Meyer, Esquire Meyer and Brooks, P.A. Post Office Box 1547
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.
