STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 99-3735
)
EUGENE JONES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on January 31, 2001, and February 1, 2001, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Carmen M. Rodriguez, Esquire
9245 Southwest 157th Street, Suite 209
Miami, Florida 33157
For Respondent: Mark F. Kelly, Esquire
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES
Whether Respondent's employment should be terminated, as recommended by the then-Interim Superintendent of Schools, and,
if not, whether Respondent (who has been suspended without pay pending the outcome of this dismissal proceeding) should be reinstated with "back salary."
PRELIMINARY STATEMENT
By letter dated April 30, 1999, the then-Interim Superintendent of Schools advised Respondent that she was recommending that the School Board of Broward County (School Board) formally suspend him, without pay, from his teaching position for "unsatisfactory job performance." The letter read as follows:
Pursuant to Florida Statute 231.29, you are hereby notified that a recommendation will be made to the School Board for your formal suspension without pay as a teacher of the Broward County School System. This recommendation is predicated upon unsatisfactory job performance.
Florida School Laws, Section 230.33, Duties and Responsibilities of the Superintendent, paragraph 7, sub-section (e) states the following:
"Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the district school board and notify the district school board immediately of such suspension.
When authorized to do so, serve notice on the suspended member of the
instructional staff of charges made against him or her and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein."
This recommendation will be presented to the School Board on Tuesday, May 18, 1999, at 1:00 p.m., at the Kathleen C. Wright Administration Building, 600 Southeast 3rd Avenue, Ft. Lauderdale, Florida, with a recommendation for your dismissal. You may request a formal 120 hearing, provided that you request said hearing, in writing, to the Superintendent on or before 5:00 p.m., Friday, May 21, 1999. Failure to request a hearing will result in the School Board acting upon the Superintendent's recommendation at the Tuesday, June 1, 1999, Board meeting.
By letter dated May 17, 1999, Gary Itzkowitz, a field staff representative of the Broward Teachers Union, "request[ed] a formal 120 hearing on [Respondent's] behalf."
On May 18, 1999, the School Board took action to suspend Respondent, without pay, pending the outcome of the "formal 120 hearing" Respondent had requested.
On September 2, 1999, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.
The hearing was originally scheduled for January 24 through 27, 2000, but was continued several times. As noted above, it was ultimately held on January 31 and February 1, 2001. The Order Granting Continuance and Re-Scheduling Hearing for January 31 and February 1, 2001, incorporated by reference the provisions of the "first Notice of Hearing" issued in this case,
in which it was announced that the issue to be litigated at the hearing would be "[w]hether Respondent's employment should be terminated, as recommended by the Superintendent of Schools."
On January 24, 2001, prior to the commencement of the final hearing, the parties filed a Joint Pre-Hearing Stipulation, which provided, in pertinent part, as follow:
NATURE OF THE CONTROVERSY
Respondent, EUGENE JONES, was employed by the Petitioner, BROWARD COUNTY SCHOOL BOARD, as a teacher. Respondent was recommended for termination and suspended without pay on or about May 18, 1999 for unsatisfactory job performance. Respondent claims his performance was satisfactory and that the 90 day rule provided in 231.29, Fla. Stat. does not apply to him as a continuing contract employee.
STATEMENT OF THE CASE
Petitioner's Statement
The Broward County School Board submits that Eugene Jones' unsatisfactory job performance requires his termination. Petitioner asserts that Respondent's serious performance deficiencies created a chaotic and ineffective classroom environment inconsistent with learning and rendered Respondent inefficient, ineffective and incompetent. Respondent was unwilling and/or unable to improve after his ninety day probationary period, provided by Florida Statute 231.29. Thus, a recommendation for termination was required.
After observing Respondent poorly manage his class, unaddressed student misbehavior and his inadequate lessons and lesson plans on several occasions, he was placed on
performance counseling on December 17, 1998. Soon thereafter, a performance development plan was created. This set forth deficiencies and strategies for improvement. Respondent proceeded to be evaluated periodically and was provided assistance as well as recommendations. The conclusion of the probation was set for April 13, 1999 at which time his evaluator, Principal Jennie Jones, would evaluate his advancement.
However, as of April 5, 1999, Respondent failed to return to work. Respondent failed to appear for a final evaluation. Thus, after several futile attempts to schedule a meeting with him, Respondent was assessed and given an unsatisfactory mark on his final evaluation on April 19, 1999. This lead to the recommendation of Mr. Jones' termination and suspension without pay pending final agency action. On or about May 1999, Respondent applied for long term disability through Petitioner. In response to the question on that disability application: "Before you stopped working, did your condition require you to change your job or the way you did your job?" Respondent checked the box "yes" and stated: "I could not perform my job due to my condition."
Respondent's Statement
Respondent contends that, as a continuing contract teacher, he could not be terminated pursuant to [Section] 231.29, Fla. Stat., but could only be terminated in accordance with the procedures set forth in [Section]
231.36. The charging documents in this case do not allege any specific grounds for discharge encompassed under [Section] 231.36; therefore under [Section] 231.36(6)(a)[sic] respondent is entitled to reinstatement with back pay.
Respondent was improperly targeted for termination. He had performed satisfactorily for several years teaching
drop-out prevention students at Plantation Middle School under the previous principal. His teaching performance did not change significantly during the 1998-1999 school year, yet the new principal, occupying such a position in her first year and unfamiliar with the qualities of the students to which respondent was assigned, arbitrarily selected him for heightened evaluation, and ultimately probation and termination.
Although the criticisms of respondent's performance were in most, if not all, cases unfair, respondent made a good faith and successful effort to meet any and all perceived deficiencies and in fact did so. In certain instances, petitioner gave respondent erroneous instruction, failed to acknowledge any improvement in his performance, and arbitrarily concluded that he had not satisfactorily completed the probation period by March 26, 1999.
Respondent's failure to return [to] work after spring break on April 5, 1999, was due to illness which was documented by his physician. At all times, he fully advised the administration at the school that he was unable to return to work due to his physical condition. Although the petitioner sent letters to him during this period, petitioner at no time asserted that respondent had abandoned his position or was absent without appropriate leave, and any effort to make such charges at this late date is unfair and prejudicial to respondent. Respondent's subsequent unsuccessful attempt to obtain disability benefits has no legal bearing on the issues in this case or on respondent's right to reinstatement and back pay should he prevail. . . .
ADMITTED FACTS
Respondent was hired by the Broward County School Board on or about November 20, 1975.
Respondent was employed as a teacher at Plantation Middle School at the time of his suspension, pursuant to a continuing contract.
Respondent was assigned to the documentation process of the Instructional Personnel Assessment System (hereinafter "IPAS") commencing the 90 day probationary period on December 17, 1998.
Respondent's Performance Development Plan was implemented on January 7, 1999.
Respondent was observed by an administrator on January 27, 1999, February 5, 1999, February 17, 1999, and March 3, 1999.
Respondent failed to report to work as of April 5, 1999. His last day at work was March 26, 1999.
Respondent was recommended for termination on or about April 22, 1999.
Respondent was suspended without pay on May 18, 1999.
Respondent applied for Long Term Disability Benefits and Social Security Disability Benefits.
ISSUES OF LAW AS TO WHICH THERE IS AGREEMENT.
The Division of Administrative Hearings (hereinafter DOAH) has jurisdiction over this matter.
ISSUES OF FACT WHICH REMAIN TO BE LITIGATED.
Whether Respondent is subject to termination pursuant to Florida Statute
231.29, Assessment Procedures and Criteria, effective May 2, 1998 until June 21, 1999.
Whether Respondent is subject to termination pursuant to Florida Statutes 231.36, Contracts with Instructional Staff, Supervisors and Principals.
Whether Respondent is subject to termination pursuant to Florida Statutes 231.44, Job Abandonment.
Respondent objects to the inclusion of this issue of fact.
Whether Respondent was able to perform his job.
ISSUES OF LAW FOR DETERMINATION BY ADMINISTRATIVE LAW JUDGE
Whether Respondent is subject to termination pursuant to Florida Statute 231.29, Assessment Procedures and Criteria, effective May 2, 1998 until June 21, 1999.
Whether Respondent is subject to termination pursuant to Florida Statutes 231.36, Contracts with Instructional Staff, Supervisors and Principals.
Whether Respondent is subject to termination pursuant to Florida Statutes 231.44, Job Abandonment.
Respondent objects to the inclusion of this issue of law.
Whether Respondent was able to perform his job.
Whether Respondent's admission that he was and is unable to perform his job is dispositive as to all or any of the requested relief. . . .
At the final hearing, the following witnesses testified: Jean Jones, Thomas Fegers, Gaile Rodriguez, Dr. Kathy Kirk, Gary Itzkowitz, Ronald Jackson, Sybil Gordon, Milton Roseburr, Claire Peterson, Curtis Riddick, and Respondent. In addition to the testimony of these witnesses, 33 exhibits (Petitioner's Exhibits A through G, I through K, O, V through Y, AA, BB, DD through GG, MM, PP through RR, TT, UU, WW, and Respondent's Exhibits C, J, N, and O), were offered and received into evidence. The undersigned reserved ruling on Petitioner's Exhibit VV, a letter dated May 15, 1995, to Respondent from Mark Seigle, the School Board's Associate Superintendent for Personnel, Governmental and Community Relations, which reads as follows:
The Professional Standards Committee met on April 12, 1996, and reviewed the investigative report submitted by the Special Investigative Unit regarding an incident that occurred involving you and a student(s).
After careful review, the committee found that probable cause exists to believe the allegation of sexual harassment. Let this correspondence serve as a warning that any future conduct of this nature will result in a recommendation for disciplinary action.
You are required to attend the training, Harassment in the Workplace, through the office of Equal Educational Opportunities, Broward County School Board. Please contact Molly Stark at 765-6415 to schedule this training.
If you have any questions or concerns regarding this mater please contact me a 765-7077.
Having carefully considered the matter, the undersigned hereby rejects Petitioner's Exhibit VV because of its lack of probative value.
At the close of the evidentiary portion of the hearing on February 1, 2001, the undersigned announced on the record that proposed recommended orders had to be filed no later 30 days from the date of the filing of the transcript of the hearing with the Division. The hearing Transcript (consisting of two volumes) was filed with the Division on February 20, 2001. On March 15, 2001, Respondent filed an unopposed motion requesting an extension of the deadline for filing proposed recommended orders. On March 16, 2001, the undersigned issued an Order granting the motion and extending the deadline for the filing of proposed recommended orders to March 23, 2001.
The School Board and Respondent timely filed their Proposed Recommended Orders on March 23, 2001. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, including the stipulations of the parties, the following Findings of Fact are made:
The School Board is responsible for the operation, control, and supervision of all public schools (grades K through
12) in Broward County, Florida, including Plantation Middle School (Plantation).
Jean Jones is now, and has been since the beginning of the 1998-99 school year, the principal of Plantation. The 1998-
99 school year was her first as a principal of any school. She had served as an assistant principal for seven years before becoming Plantation's principal.
Thomas Fegers is now, and has been since 1993, an assistant principal at Plantation.
Milton Roseburr is now, and has been since August of 1995, an assistant principal at Plantation.
At all times material to the instant case, Carol Mendelson has been an assistant principal at Plantation.
Respondent is a veteran educator. He has been teaching since 1964.
Respondent has been employed by the School Board as a teacher since 1975. He holds a continuing contract of employment, which provides, in pertinent part, as follows:
The Teacher agrees to teach the full period of service for which this contract is made, in no event be absent from duty without leave or to leave his position without first being released from this contract by the School Board, to observe and to enforce faithfully the laws, rules regulations, and policies lawfully prescribed by legally constituted school authorities insofar as such laws, rules, regulations, and policies are applicable to
the position held by him. The Teacher agrees that the last salary payment in each academic year may be withheld upon proper notice to the Teacher as to the reasons for said withholding if all duties have not been performed as required by law and regulations of the School Board and the State Board of Education.
The services to be performed hereunder shall begin on the beginning date shown above [August 23, 1978] and thereafter as determined by the School Board and are to be performed in the position and school as assigned from time to time by the said School Board. . . .
8. This continuing contract of employment shall remain in full force and effect from year to year, subject to all the provisions herein set forth, unless modified by mutual consent in writing by the Parties hereto, except the teacher may be suspended or removed for cause as provided by law. The Teacher agrees that he may not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Teacher be entitled to any compensation subsequent to the cancellation of this contract. This contract may also be terminated by the written resignation of the Teacher submitted not later than four (4) weeks before the close of the post-school conference period, to take effect at the end of the school year. Such resignation shall be submitted in substantially the form hereto attached described as Exhibit A, and by reference made a part hereof. . . .
Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions hereof, unless prevented from so doing by reason of personal illness of the Teacher or as otherwise provided by law, shall constitute sufficient grounds for the termination of
this contract by the other party, provided, however, no termination shall be effective without reasonable notice and, if timely requested by the Teacher, hearing.
The contract shall at all times be subject to any and all laws and all lawful rules and regulations, and policies of the State Board of Education and the School Board now existing or hereafter
enacted. . . .
14. This contract may be changed or modified only by an amendment in writing executed in the same fashion as the original or by a collective bargaining agreement ratified by the School Board and bargaining agent. No person, officer or employee may modify the provisions of this agreement or make any other contract with the Teacher for and on behalf of the School Board without expressed ratification by the School Board. Provided, however, in accordance with paragraph two hereof both parties agree that this contract shall be modified by the adoption of a subsequent salary schedule as provided in paragraph two and that adoption of such amended salary schedule by the School Board shall constitute expressed ratification.
At all times material to the instant case, Respondent was a classroom teacher at Plantation.
For the three school years immediately preceding Ms. Jones' arrival at Plantation (the 1995-96, 1996-97, and
1997-98 school years), Respondent was supervised and evaluated by Mr. Roseburr.
During this period of time, Respondent had an extremely difficult and challenging teaching assignment. He
taught a "self-contained" class of sixth, seventh, and eight grade "drop out prevention" students. "Drop out prevention" students generally struggle academically, lack motivation and focus, have short attention spans, are easily distracted, come to class ill-prepared, do not complete all of their classwork, and are unruly and disruptive in class. Respondent and these "problem" students remained together in the same classroom the majority of the school day, with Respondent providing the students with instruction in all of their academic subjects.
Because conventional teaching and behavior management methods did not always work with these students, Respondent needed to be creative and innovative to effectively discharge his classroom duties.
Mr. Roseburr was in Respondent's classroom on a daily basis during the three-year period he supervised Respondent. Impressed with Respondent's performance and his "unique knack of knowing what to say and how to say it to students that are difficult," Mr. Roseburr gave Respondent satisfactory evaluations each of the three school years Respondent was under his supervision.
The first quarter of the 1998-99 school year, Respondent had the same teaching assignment he had had the previous three school years, notwithstanding his expressed desire to have his assignment changed.
In or around September of 1998, Respondent spoke with Ms. Jones about the possibility of having a parent volunteer (Sybil Moton) assist him in the classroom.
Shortly after his discussion with Ms. Jones, Respondent sent her the following letter, dated September 14, 1998:
I have been assigned to teach 6th, 7th & 8th grade self-contained D.O.P. for several years. I have been doing this at a great disadvantage. There are many Teachers, Team Leader and Department Heads, at this school who would not accept this assignment or be successful with it. I have accepted this assignment and I'm ready to do the best job I can under the circumstances.
I have to plan for three grade levels, while other teachers only plan for one. I have to prepare for five subjects, while other teachers only prepare for one. I have five subject area meetings to attend, while other teachers only have one.
I have not read any research that support[s] the notion that a teacher, who has as many duties and responsibilities as have been placed upon me, will be more successful or as successful as a teacher, who teaches one subject area or one grade level. Does the research indicate that children placed in this kind of class situation, will be more successful than in the traditional class situation? Is it possible that the children might be at a disadvantage?
Each of the previous times when I requested an assistant, I was denied. It was all about money. Now when I ask a parent to help "FOR FREE," I'm told, "I don't think
I'll be able to approve Ms. Moton as a parent volunteer."
All I'm saying is that, now that I have been loaded down with all of the above, where is the help that goes with it?
As of now, I feel that I have been placed in a situation that is headed for failure, and that's not me. I want to be successful at whatever I do, that's why I keep asking for help.
These children need so much help, and I want to help them very badly.
My difficulty comes from the situation I've been placed in, more so tha[n] the children I work with.
After receiving the letter, Ms. Jones circled the last sentence of the fourth paragraph of the letter, and, on the upper right hand corner of the letter, wrote the following concerning the representation made by Respondent in this sentence:
This is blatantly untrue. If you quote people, make sure you quote them correctly.
See me please.
She then returned the letter (with her handwritten notations on it) to Respondent. Respondent thereafter, as directed, met with Ms. Jones, who cautioned him that he could not "just . . . go out and recruit parents to work in [his] classroom and not have them approved by the School Board."
Mr. Roseburr, although he remained an assistant
principal at Plantation, did not supervise Respondent during the 1998-99 school year. Respondent's new supervisor was another assistant principal at the school, Carol Mendelson.
On October 7, 1998, Ms. Mendelson conducted a classroom observation of Respondent. Following the observation, she sent Respondent the following memorandum, dated October 12, 1998:
OBSERVATIONS
During my observation of your class, you were introducing personal narratives to your students. You explained the concept of the first draft and the idea that students would choose their own topic for this assignment. Students were walking around the classroom, talking, drawing, had heads down on the desk without consequences from you. A review of your planbook indicates that plans for the day do not coincide with the lesson being taught by you.
SUGGESTIONS
Please consider the following recommendations to better assist the students:
Setting clear, precise, classroom management rules that are reviewed daily with students will help enforce the rules.
Consequences must be fair and consistent.
Students were walking around the classroom, talking, drawing, had heads down without consequences from you. It is imperative that you establish and implement specific behavioral and procedural expectations, rules, and consequences in
order to stop inappropriate behavior before it becomes more serious.
Develop plans which match the curriculum you are addressing on each given day.
Please make sure that your grade/planbook is in compliance with School Board policy and includes grades, entry dates, transfer dates, absences, interim grades, ESOL strategies, Standards of Service, and all mandated, pertinent information. Please meet me on Monday, October 22 during your planning period with your grade/planbook up- to-date with the abovementioned information.
At the end of the first quarter of the 1998-99 school year, in approximately the first week of November of 1998, Respondent was given a new teaching assignment at Plantation, as well as a new classroom (an uncarpeted portable, smaller than his old classroom). He was assigned to a team consisting of four teachers (including himself) responsible for teaching approximately 120 students divided into four separate groups (Groups A through D), one of which (Group D) contained the students who had been in the "self-contained" class of "drop out prevention" students that Respondent had taught during the first quarter of the school year. Although only one of the four groups had students who were in the school's "drop out prevention" program, many of the students in the other three groups were as difficult for the teachers on the team to deal with as were the "drop out prevention" students.
Respondent was the team's math and advanced communication skills teacher.
The leader of Respondent's team was Ronald Jackson, the team's social studies teacher. Like Respondent, Mr. Jackson joined the team in November of the school year. In addition to Respondent and Mr. Jackson, there was also a language arts teacher, as well as a science teacher, on the team.
On November 19, 1998, shortly after he had undertaken his new assignment, Respondent was observed in the classroom by Ms. Jones.
Following the observation, Ms. Jones sent Respondent the following memorandum describing what she had observed during the observation:
This letter is being written to inform you that on this date, I came to your classroom on two different occasions and found the following:
Students not on task (talking, 1/ no materials)
Students out of their seats and/or being permitted to sit wherever they wished with no management from you and no consequences for non-compliance. 2/
Your plan book was not updated by November 13 as requested. You have been asked to rectify this situation by Friday, November 20.
Your plan book reflected no attendance or grades for students. 3/
Your lesson plans are not written appropriately, do not reflect the Sunshine State Standards, and do not reflect acceptable practice for lesson plans as discussed with all teachers during the pre- planning days.
Your back is turned to students during your lesson 4/ and you are not aware or monitoring what is happening in your classroom while you are instructing.
There is very little instructional organization and no classroom participation from the students.
There is no indication that you are doing the daily FCAT warm-ups required for all math students in the school. There is no FCAT folder required for each student to use on a daily basis.
Ms. Jones again observed Respondent in the classroom on Tuesday, December 1, 1998, during first period. Respondent had been off from work the previous five days (Thursday, November 27, 1998, Thanksgiving Day, through Monday,
November 30, 1998). Upon his arrival at school that morning, before entering his classroom, he was called into an unscheduled student services meeting. Because of the length of the meeting, he arrived at his classroom a "couple [of] minutes" after the first period bell had rung. When he opened the classroom door, he noticed that "the fire extinguisher had been sprayed all over the room." With the students' assistance, he cleaned up as best he could and then started his lesson. When Ms. Jones entered the room, Respondent was in the back of the room taking
attendance. The students were "out of control." They had no books and there was no assignment on the blackboard.
Following the observation, Ms. Jones sent Respondent the following memorandum, dated December 1, 1998, describing what she had observed during the observation:
On this date I visited you classroom and observed the following:
It was 9:00 a.m. and the students were totally out of control. There was no assignment on the board, students had no books. You were in the back of the room finishing your attendance, oblivious to what was going on around you. There were absolutely no reprimands from you for their behavior. In fact, it was I who had to quiet the class down. The class was so loud and unruly, that you did not even hear Ms.
Milligan call you over the loudspeaker. I also had to inform you that someone was calling you over the public address system.
Although your plan book appears to be updated, you were not following the plans as outlined. In fact, no FCAT warm up was on the board, no books were in use and absolutely nothing in terms of teaching and learning was occurring. This was one half hour after class had started. After I quieted the class down, you proceeded to give out paperwork to students apparently to review it. You handed out papers one by one to students who began to be unruly again.
At 10:00 a.m. I visited your classroom again, because I wanted to speak with Mr. Roseburr who was outside your door.
However, when I went inside the classroom, there was still no work on the board for students, although books were on the desks. Students were talking and looking around and not on task because there was no task to be
on. When I questioned what the students were doing, you explained that you had papers to return and that you[] were going to review their work. Once again, you passed out papers one by one, taking away from instructional time and giving students opportunity to misbehave. 5/
It is apparent to me that there is a lack of classroom management in terms of student behavior, and a greater lack of lesson management since there are no clear expectations for students and no method for simple housekeeping chores as attendance and returning papers. You are oblivious to their behavior 6/ and provide no consequences. Most obvious, is the lack of meaningful work for students. There was none provided. Given those circumstances, students will find an easy opportunity to misbehave.
Should these conditions, including delivering lessons as outlined in your plan book, not improve immediately, you will be placed in documentation for unsatisfactory performance.
On December 7, 1998, Respondent was observed in the classroom by Mr. Fegers.
Following the observation, Mr. Fegers sent Respondent the following memorandum, dated December 16, 1998, in which he described and commented on what he had observed during the observation:
On Monday, December 7, 1998 I observed you teaching your class from 9:15-9:45 A. M. Based upon my observation the following are suggestions/comments for your consideration.
I found the classroom to be orderly; however, your students were talking loudly as you attempted to teach by talking louder.
The class continued talking out loud with no consequence or redirection by you. While the entire class was being disruptive you gave one check to a student for talking, even though the entire class was talking.
Never once did you get the class under control and, for some unknown reasons, you continued talking with no one listening.
Please be advised that this is unacceptable. It does not make sense to try to shout louder than your class. You must first bring the class under control by confronting the misbehavior. This did not occur.
Your attendance was neatly done, listing tardies and absences.
Grades were virtually non-existent, and the few that were there did not have names to identify who they belong to. Grades must be clearly recorded next to the appropriate student's name. 7/
Lesson plans from 11/9/98-11/30/98 were incomplete. There were no warm up activities. Additionally, you identified the 504 student's strategies as they were to "do 1/2 of the assignment." The strategies need to be based on the student's needs as they related[] to the written 504 plan. 8/
ESOL strategies written were, "Students may sign out a book if requested." This is unacceptable.
Please let me know if I can be of further assistance.
On December 17, 1998, Respondent received a memorandum from Ms. Jones notifying him that his "performance [was] unsatisfactory and that [he was being] placed in the Documentation process of the IPAS System effective December 17, 1998." In the memorandum, Ms. Jones explained that she was
"moving [Respondent] from Development to Documentation" because of her "concern" regarding his performance in the areas of "lesson presentation," "classroom management," and "behavior management." The memorandum further advised Respondent that "the 1997 Florida Legislature [had] amended Florida Statu[t]e
231.29 [to] state[] that the School District shall place a teacher on performance probation for 90 calendar days from the receipt of this notice of unsatisfactory performance." Respondent signed the memorandum and dated it (December 17, 1998), acknowledging his receipt of the document.
"IPAS" is the acronym for the School Board's "Instructional Personnel Assessment System." Under "IPAS," "lesson presentation," "classroom management," and "behavior management" are three of the ten "performance areas" in which instructional personnel are evaluated. The other seven are "instructional planning," "lesson management," "student performance evaluation," "communication," "records management," "subject matter knowledge," and "professional competencies." 9/ Ratings of either "S" (satisfactory), "N" (needs improvement), or "U" (unsatisfactory) are given in each "performance area."
With input from Respondent and Gary Itzkowitz, a Broward Teachers Union field staff representative, Ms. Jones, Mr. Fegers, and Dr. Cathy Kirk, the School Board's coordinator of teacher evaluation, developed Performance Development Plans
for Respondent in the "performance areas" of "lesson presentation," "behavior management," and "classroom management." Each plan was dated January 7, 1999, and indicated that Mr. Fegers would be the "assessor" and that the "follow- up/review date" was March 5, 1999.
The "lesson presentation" Performance Development Plan read as follows:
Identified Deficiencies
Fails to create interest through the use of materials and techniques appropriate to the varying abilities and backgrounds of students (6B-5.004).
Fails to use different types of questions to obtain desired learner responses.
Fails to ask questions which are clear and requires students to reflect before responding.
Fails to circulate about the room as students engage in seatwork and assist students as needed.
Strategies for Improvement, Corrections, and Assistance
Ms. Greifinger [the chairperson of Plantation's math department] will meet and discuss various motivational teaching techniques such as (a) Use of visual aids, manipulatives, and critical thinking activities, etc. by January 14, 1999.
Ms. Cranshaw will assist with scripting questions related to the content during lesson planning 2-3 weeks in a row by January 29, 1999.
Mr. Jones will observe Ms. Greifinger focusing on questioning techniques and follow-up by discussing implementation in classroom during his planning time by January 22, 1999.
Mr. Jones will read the FPMS Domain document (domain 3) on circulating and assisting and discuss with Mr. Fegers.
Follow-up assistance will be provided by Mr. Fegers and/or Mrs. Jones via observation and follow-up conferencing.
Expected Outcomes and Timeline Teacher Will:
Create interest through use of material and techniques appropriate to the varying abilities and backgrounds of students (6B- 5.004) by April 13, 1999.
Use different types of questions to obtain desired learner responses by April 13, 1999.
Ask questions which are clear and require students to reflect before responding by April 13, 1999.
Circulate about the room as students engage in seatwork and assist students as needed by April 13, 1999.
Consequences for failure or refusal to remediate all areas identified as deficiencies:
Will result in an unsatisfactory IPAS evaluation and termination of contract.
Respondent received a copy of this document on January 7, 1999, but refused to sign it.
The "behavior management" Performance Development Plan read as follows:
Identified Deficiencies
Fails to maintain consistency in the application of policy and practice by:
Establishing routines and procedures for the use of materials and the physical movement of students.
Formulating appropriate standards for student behavior.
Identifying inappropriate behavior and employing appropriate techniques for correction (6B-5.007).
-Fails to demonstrate an awareness of what all students are doing.
Strategies for Improvement, Corrections, and Assistance
Mr. Jones will observe Ms. Greifinger's class to witness her technique in behavior management. Discussion to follow by January 21, 1999.
Mr. Jones will observe Mr. Lyons' class to witness his techniques in behavior management by January 28, 1999. Discussion with Mr. Fegers and Mr. Lyons to follow.
Mr. Jones will observe Mr. Watkins' class to witness his techniques in behavior management by January 28, 1999.
Mr. Jones will receive assistance from Ms. Mendelson, Mr. Fegers, Mr. Roseburr and selected teacher(s) to develop a behavior management plan including rules, rewards and including consequences by January 14, 1999.
Mr. Jones will develop a phone log system which will indicate conversations, conferences with parents, specific student infractions, and disposition of all of the above with the assistance of Ms. Mendelson by January 21, 1999.
Mr. Fegers will observe classroom to help identify inappropriate behaviors and follow-up with discussion to include appropriate ways to desist inappropriate behavior by January 28, 1999.
Expected Outcomes and Timeline
Maintain consistency in the application of policy and practice.
Establish routines and procedures for the use of materials and the physical movement of students by April 13, 1999.
Formulate appropriate standards for student behavior by April 13, 1999.
Identify inappropriate behavior and employ appropriate techniques for correction (6B-5.007) by April 13, 1999.
Demonstrate an awareness of what all students are doing by April 13, 1999.
Consequences for failure or refusal to remediate all areas identified as deficiencies:
Will result in an unsatisfactory IPAS evaluation and termination of contract.
Respondent received a copy of this document on January 7, 1999, but refused to sign it.
The "classroom management" Performance Development Plan read as follows:
Identified Deficiencies
Fails to create and maintain an organized and pleasant working environment in the classroom.
Fails to encourage students to participate and contribute to class activities.
Fails to establish an environment conducive to positive peer interaction.
Fails to identify individual social, emotional and/or physical needs that might affect school success.
Strategies for Improvement, Corrections, and Assistance
Mr. Watkins will assist in the setting-up and organizing of the classroom to include aesthetically appealing academic and social environment by January 14, 1999.
Ms. Greifinger will discuss different student activities that will foster participation and interaction 2-3 times by February 11, 1999.
Should a 504 student be assigned to your team, Ms. Hogan will review 504 plans and discuss ways to modify curriculum and implement in classroom (Date to be determined).
Expected Outcomes and Timeline
Create and maintain an organized and pleasant working environment in the classroom by April 13, 1999.
Encourage students to participate and contribute to class activities by April 13, 1999.
Establish an environment conducive to positive peer interaction by April 13, 1999.
Identify individual social, emotional and/or physical needs that might affect school success by April 13, 1999.
Consequences for failure or refusal to remediate all areas identified as deficiencies:
Will result in an unsatisfactory IPAS evaluation and termination of contract.
Respondent received a copy of this document on January 7, 1999, but refused to sign it.
The "[s]trategies" set forth in the Performance Development Plans were reasonably designed to enable Respondent to improve his performance in the areas of "lesson presentation," "classroom management," and "behavior management."
These "[s]trategies" were implemented. Those at the school asked to assist Respondent provided him the requested assistance (with Respondent's cooperation). 10/
On January 27, 1999, Respondent was observed in the classroom by Mr. Fegers.
On February 1, 1999, Mr. Fegers and Ms. Jones met with Respondent to discuss Mr. Feger's January 27, 1999, observation. In addition, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during the observation:
This is a follow up to our conference on Monday, February 1, 1999. On Monday, February 1, 1999, we met to discuss my observation of your teaching that occurred on Thursday, January 27, 1999 from 1:38-2:13
P.M. Ms. Jeanie Jones, our Principal, was also present at the follow up conference.
Based on my observation we discussed the following suggestions/comments for your consideration:
All students were seated when I arrived. Your rules were not posted. 11/
You were working on F-CAT testing exercises.
At 1:55 A.M. I observed eight students not doing any work. I stated my concerns that the students should not be given 30 minutes to do an assignment without you following up to see if they are on task. I recommend that additional assignments be given so that students do not sit and do nothing.
The class is becoming increasingly noisy with no redirection from you. This is unacceptable. Finally, you stated to the class, "Alright people listen up!" Nothing followed that comment so the class continued talking. The talking continued because of down time, with students having nothing to do.
You then started passing out papers one- by-one to students randomly which took a great deal of time. By this time most of the class was off task. This is unacceptable. Varied instructional activities as well as pacing of assignments would eliminate the majority of the misbehavior. This did not occur.
We agreed that I would come back this week for another observation.
Mr. Fegers next observed Respondent in the classroom on February 5, 1999.
Following the observation, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during his February 5, 1999, observation:
On Friday, February 5, 1999, I observed you teaching your class from 8:50-9:20 A.M. Based on my observation are the following suggestions/comments for your consideration.
I found the classroom to be orderly with all students seated at t[]he beginning of my observation. You reviewed the rules and expectations with your class. Your rules were also posted.
One student was seated with a washcloth on top of his head. He was not asked to remove it. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct.
I observed you passing out six writing assignments to students for talking. I observed you circulating and assisting students on division, simplifying fractions and multiplication.
I observed you redirecting inappropriate behavior back to the assignment.
Some students were requesting pencils at 9:15. Please make sure all students have something to write with at the beginning of the class. This should also be part of your discipline plan, that students come to class with paper and pencil prepared to work.
Please let me know if I can be of further assistance.
Respondent provided Mr. Fegers with the following written response to Mr. Feger's memorandum concerning the February 5, 1999, observation:
#1. Thanks for the positive observation.
#2. Yes this is true. I will follow your suggestion.
#3. Thanks for the positive observation. #4. Thanks for the positive observation.
#5. I have tried your suggestion, it doesn't work. They don't care and they don't want to work. That's why they don't come prepared.
On February 17, 1999, Respondent was observed in the classroom by Ms. Jones.
Following the observation, Ms. Jones sent Respondent the following memorandum, dated February 17, 1999, regarding her "observation [of] February 17, 1999." It read as follows:
On this date I observed your C group in a math class. You were teaching least common denominators for fractions and had several examples on the board. Students came into the room noisily and it took about 7 minutes to get them quieted down and settled for work. You reminded them of the behavior rules. Some students were unprepared for work and had no notebook paper or pencils.
Although there were stated consequences for students who misbehaved, there were no consequences for unprepared students.
At the beginning of the lesson, you had a student hand out SAT review packets to each student and told them it was due on Friday and that the packet would be their homework for the next two days. You said that anybody could help them with the answers. I am questioning why you would give such a large body of work to these students and then ask them to complete it on their own.
These students would benefit far better from you working out each problem with them, and/or allowing them to work in cooperative groups on a small number of problems at a time. This assignment is a concern to me, because I feel that it is a frustrating assignment to these students. Additionally, and most importantly, this is review for the SAT and they need your direct instruction and supervision. They will give up on this assignment because it is too much for them to "bite off" at one time. Students need to be taught to their instructional level, not their frustration level. Again, I feel that teacher directed instruction and cooperative learning activities would be more successful with these students, especially for the SAT review which is critical.
I did not feel the answers to the examples should have already been up on the board; however, you did go over each problem thoroughly and had the students figure out how you arrived at the answer. You stopped disruptive behavior and gave two writing assignments out to disruptive students. You helped them learn how to use their calculators properly. You got students to raise their hands for answers and had students contributing to the lesson. You told the students you were going to give them examples of similar math problems to work out themselves, but the four problems you gave them were not exactly the same as the examples i.e., you did not provide a problem with mixed numbers.
I see that you are making an effort to work with your students and that you are preparing lessons for them. Your classroom discipline appears to be improving, but still needs some work as students are still coming unprepared for classwork. Please continue to pay attention to the needs of your students, particularly when it comes to assignments that you request they do on their own.
On March 3, 1999, Respondent was observed in the classroom by Mr. Fegers.
Following the observation, Mr. Fegers sent Respondent the following memorandum, dated March 5, 1999, in which he described and commented on what he had observed during the observation:
On Wednesday, March 3, 1999, I observed you teaching your class from 1:35-2:05 P.M. Based on my observation the following are suggestions/comments for your consideration:
The students were extremely noisy. You were seated on a stool in the front corner of the room. 12/ You were not redirecting student misbehavior. No attempt to stop the misbehavior occurred. I did not observe you reviewing the rules and expectations that students were to follow. I strongly recommend that you follow the discipline plan as [you] indicated you would.
You had three math problems on the overhead for students to do. One of which was the following, "5 is what % of 20?" The students were confused with not only this problem but also the other two. You went over the problem, but not step by step so that the students could follow along. They were confused. It would have been much more beneficial if the exercise or problems were
broken down into simpler forms so that your class could understand. You did not take into consideration the appropriate levels or activities of classwork that meet the students' needs. Also the directions should have been clear, brief, and explicit for student understanding. This did not occur. 13/
Two students were reading a magazine, 14/ five were sleeping (literally), right under your nose, one was working with your attendance sheet while class was supposedly going on. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. Additionally, I question why a student was working with a confidential document. 15/
I observed an atmosphere of animosity within the class, as evidenced by your voice inflection and you telling several students to shut up.
You also asked me to speak to a student who you claimed had a beeper. I removed the student after the observation was finished and escorted him to the office. The student did not have a beeper. You accused the wrong student. You had claimed that the beeper went off in class, which it may have, but it was not the fault of the young man you requested I remove.
Based on the observation done to date your performance in the areas identified in your Performance Development Plan are unsatisfactory.
Ms. Jones, on March 5, 1999, filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management"
and rating him "satisfactory" in the remaining seven "performance areas."
That same day, she and Mr. Fegers met with Respondent and Mr. Itzkowitz to discuss this "mid-point evaluation," which Ms. Jones showed to Respondent during the meeting. Respondent was advised that he ”needed to utilize appropriate instructional techniques to engage his students, encourage his students to participate and contribute to class activities, demonstrate an awareness of what his students are doing and stop all inappropriate behavior before it spreads or becomes more serious." In addition, he was reminded that "the 90th day [of his probationary period] was April 13 per Florida Statutes
231.29 and the documentation process of the IPAS system."
Pursuant to a request made by Mr. Itzkowitz, on Respondent's behalf, at the "mid point evaluation" meeting, the following additional "strategy" was added, effective March 5, 1999, to the "Strategies for Improvement, Corrections, and Assistance" portion of the "lesson presentation" Performance Development Plan:
Mr. Fegers, Ms. Greifinger and Mr. Jones will meet to plan a lesson, modeled by Ms. Greifinger and implemented by Jones & observed by Fegers by 3/17/99.
On or about March 17, 1999, in accordance with the "model[ing]" requirement added to the "lesson presentation"
Performance Development Plan, Ms. Greifinger, in Respondent's presence, taught a lesson to Respondent's students. Mr. Fegers was present for approximately five to ten minutes of the lesson. During the lesson the students behaved, by and large, as they did when Respondent was teaching them. There were students off task and walking around the classroom to whom Ms. Greifinger "had to speak." Respondent noticed that there was one student who had his head on the desk and was listening to a Sony Walkman. Ms. Greifinger said nothing to this student.
Mr. Fegers was supposed to observe Respondent teach the lesson that Ms. Greifinger had "modeled." He had initially planned to conduct such an observation the week before spring break, but upon reconsideration (without consulting with Respondent or Mr. Itzkowitz) he determined that, in fairness to Respondent, such an observation should be conducted after spring break.
The last school day before spring break was March 26, 1999. Respondent worked that day. It was the last day he reported to work.
Sometime after the beginning of spring break, Respondent determined that, because of job-related stress and anxiety (resulting, in part, from his belief that he was being treated unfairly by school administrators), he was not able to perform his assigned duties at Plantation. Accordingly, he did
not return to work on April 5, 1999, after the end of spring break, and he remained out of work thereafter. In accordance with School Board policy, each week that he was out (prior to the initiation of disciplinary action against him), he provided advance notice that he would be absent by telephoning "sub- central" and advising of his anticipated absence and the resultant need for the School Board to hire a substitute teacher to teach his classes. On occasion, Respondent also telephoned Ms. Jones' secretary (at the secretary's home) to let the secretary know that he would be absent. Respondent, however, did not initiate any direct contact with Ms. Jones.
On or about April 12, 1999, Ms. Jones sent to Respondent, by certified mail, a letter, which read as follows:
Please be informed that your 90th day according to Florida Statute 231.29 and as indicated on your Performance Development Plan is April 13. Due to your absenteeism, we were unable to meet for a final evaluation.
We will meet in my office on Monday, April
19 at 12:15 P.M. Please call this office as soon as possible to inform us if you will be attending this meeting.
Respondent neither telephoned Ms. Jones, nor attended a meeting with her on April 19, 1999.
On that date (April 19, 1999), Ms. Jones filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson
presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas."
In Ms. Jones' view, although at certain times during the probationary period Respondent had shown some improvement in his performance, "[t]here was nothing [in the way of improvement] on a consistent basis." At no time, however, did Ms. Jones believe that Respondent's performance was so deficient as to warrant his immediate removal from the classroom.
Although Mr. Roseburr was not charged with the responsibility of supervising Respondent, he did have occasion to go to Respondent's classroom and see Respondent interact with his students. During these visits, it appeared to Mr. Roseburr that Respondent was discharging his teaching duties in the same satisfactory manner he had during the three previous school years. Respondent was "always in control and working with the students."
Mr. Jackson, the leader of Respondent's team, also had a favorable view of Respondent's performance during the 1998-99 school year. According to Mr. Jackson, Respondent "always showed professionalism, spoke to the students in a positive light, . . . [and] would go out of his way to try to get them interested to do their work," employing "[v]ery creative" tactics to accomplish his objective.
Another teacher at the school who had the opportunity to see Respondent perform in the classroom during the 1998-99 school year was Claire Peterson. Ms. Peterson provided special instruction to low performing students in the school's "pull out" program. She had occasion to visit Respondent's classroom about every other day to "pull out" students in the program. During these visits, she noted that Respondent's students "seemed to be on task" and "doing what he asked of them," for the most part, and that "education was taking place." 16/ She thought that Respondent was doing a "great job."
On or about April 19, 1999, Ms. Jones began her efforts to make telephone contact with Respondent. Her efforts were unsuccessful. She left messages on Respondent's answering machine asking that he inform her when he intended to return to work. Respondent did not return Ms. Jones' telephone calls.
By memorandum dated April 22, 1999, Ms. Jones recommended to Dr. Dorothy Or, the then-Interim Superintendent of Schools, that Respondent's employment be terminated. The memorandum read as follows:
Pursuant to Florida Statute 231.29, I am writing to inform you that Eugene Jones, teacher, has completed his 90 calendar day performance probation and has failed to correct his performance deficiencies. I do not believe that Mr. Jones can correct said deficiencies and his employment should be immediately terminated.
I have complied with all applicable provisions of Florida Statutes 231.29 and have appropriate documentation (see attached).
Please inform me of your final decision in this matter.
By letter dated April 30, 1999, Ms. Orr advised Respondent that she was recommending that the School Board formally suspend him, without pay, from his teaching position for "unsatisfactory job performance."
On or about May 3, 1999, Mr. Itzkowitz, on behalf of Respondent, sent Ms. Jones the following letter:
I have recently spoken with Eugene Jones.
As you are aware, Mr. Jones has been ill and is currently under a doctor's care. He has informed me that you have tried to contact him by mail but that he is not in receipt of said correspondences. As a result, on behalf of Mr. Jones I request copies of any letters sent to him by your office in the past ninety days. Upon receipt, I shall forward them to Mr. Jones.
Additionally, I request that a meeting be scheduled for the purpose of discussing Mr. Jones' annual assessment for the current school year. Both Mr. Jones and I would like to meet with you.
I look forward to hearing from you on each of these matters.
The meeting that Mr. Itzkowitz had requested in his May 3, 1999, letter was held in "the middle of May." At the meeting, Ms. Jones did not ask any questions regarding Respondent's absence from school.
After seeing a physician about the stress and anxiety he was experiencing, Respondent applied for social security and long-term disability benefits. In applying for long-term disability benefits, Respondent submitted a completed Long Term Disability Claim Employee's Statement form, dated May 14, 1999, to the School Board's carrier, UNUM. The following are questions that were on the form concerning his "disability" and "the condition causing [his] disability" and the entries Respondent made in response to these questions:
Why are you unable to work?-- c[h]ronic anxiety state/job stress.
Does your current condition prevent you from caring for yourself?-- No.
Before you stopped working, did your condition require you to change your job or the way you did your job?-- Yes. I could not perform my job d[ue] to my condition.
Is your condition related to your occupation?-- Yes.
Last day you worked before the disability-- 3-26-99
Did you work a full day?-- Yes.
Date you were first unable to work?-- 4-5- 99.
Have you returned to work?-- No.
If you have not returned to work, do you expect to-- Yes, if I'm allowed, full time, (date) unknown.
As part of the application process, Respondent also had his treating physician, Edwin Hamilton, M.D., complete and submit to UNUM a Long Term Disability Claim Physician's Statement. On the form, dated June 3, 1999, Dr. Hamilton stated, among other things, the following: Respondent's primary diagnosis was "chronic anxiety state"; Respondent's symptoms were "inability to sleep, stress, [and] nervousness"; Respondent's symptoms had first appeared "prior to 4/99"; Respondent had first been unable to work "prior to 4/99"; Respondent's first visit to his office had been April 1, 1999, and his last visit had been April 20, 1999; Respondent's condition was work related 17/ ; Respondent had been referred to a medical social worker and advised to see a psychiatrist
18/ ; Respondent should not and could not "work in the present school classroom environment"; Respondent's prognosis was "guarded at this point"; Respondent had not "achieved maximum medical improvement"; he "expect[ed] fundamental changes in [Respondent's] medical condition" in "more than 6 months"; Respondent "should remain out of the school classroom
environment for the time being"; and Respondent "may be able to improve on medical/psychiatric consults."
By letter to Ms. Orr, dated May 17, 1999, Mr.
Itzkowitz "request[ed] a formal 120 hearing on [Respondent's] behalf."
On May 18, 1999, the School Board took action to suspend Respondent, without pay, pending the outcome of the "formal 120 hearing" Respondent had requested.
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.
Such authority extends to personnel matters. Section 231.001, Florida Statutes.
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Florida Statutes.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other
legitimate reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. Section 447.209, Florida Statutes.
Among the requirements that district school boards must follow are those found Section 231.36, Florida Statutes, which "provide[s] for three status categories for instructional staff: continuing contract, professional service contract, and probationary status," with "[e]ach category carr[ying] a separate standard for dismissal." Dietz v. Lee County School
Board, 647 So. 2d 217, 219 (Fla. 2d DCA 1994)(Blue, J.,
specially concurring).
Subsection (4) of Section 231.36, Florida Statutes, addresses continuing contract status, and provides as follows:
An employee who has continuing contract status prior to July 1, 1984, shall be entitled to retain such contract and all rights arising therefrom in accordance with existing laws, rules of the State Board of Education, or any laws repealed by this act, unless the employee voluntarily relinquishes his or her continuing contract.
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be dismissed or may be returned to annual contract status for another 3 years in the discretion of the district school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the district school board on or before April 1 of any school year, giving good and sufficient reasons
therefor, by the superintendent of schools, by the principal if his or her contract is not under consideration, or by a majority of the district school board. The employee whose contract is under consideration shall be duly notified in writing by the party or parties preferring the charges at least 5 days prior to the filing of the written recommendation with the district school board, and such notice shall include a copy of the charges and the recommendation to the district school board. The district school board shall proceed to take appropriate action. Any decision adverse to the employee shall be made by a majority vote of the full membership of the district school board. Any such decision adverse to the employee may be appealed by the employee pursuant to s. 120.68.
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude, as these terms are defined by rule of the State Board of Education. Whenever such charges are made against any such employee of the district school board, the district school board may suspend such person without pay; but, if the charges are not sustained, he or she shall be immediately reinstated, and his or her back salary shall be paid. In cases of suspension by the district school board or by the superintendent of schools, the district school board shall determine upon the evidence submitted whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he or she may be reinstated. If such charges
are sustained by a majority vote of the full membership of the district school board and such employee is discharged, his or her contract of employment shall be thereby canceled. Any such decision adverse to the employee may be appealed by the employee pursuant to s. 120.68, provided such appeal is filed within 30 days after the decision of the district school board.
At all times since the beginning of the 1998-99 school year, the school year during which this dismissal proceeding was initiated, Section 231.36(4), Florida Statutes, has contained essentially the same provisions that it does now. 19/
Pursuant to Section 231.36(4)(c), Florida Statutes, a teacher under continuing contract may be suspended or dismissed during the school year only for committing one or more of "the vernacularly denominated 'seven deadly sins'" found in [S]ection 23.36(4)(c), i.e., immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude." Spurlin v. School Board of Sarasota County, 520 So.
2d 294, 295 (Fla. 2d DCA 1988); see also Dietz v. Lee County School Board, 647 So. 2d 217, 218 (Fla. 2d DCA 1988)(Blue, J.,
specially concurring)("Persons holding continuing contracts are subject to dismissal for conduct constituting one of the so- called 'seven deadly sins': immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral
turpitude."); and School Board of Seminole County v. Morgan, 582
So. 2d 787, 788 (Fla. 5th DCA 1991)("[A] continuing contract teacher may be suspended or dismissed; however, the charges against him or her must be based on immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."). Had the Legislature intended to authorize district school boards to suspend or dismiss a continuing contract teacher during the school year for some reason other than the teacher's commission of one of the "seven deadly sins" specifically enumerated in Section 231.36(4)(c), Florida Statutes, it would have included language in Section 231.36(4)(c) (like the "but is not limited to" language it used in Subsection (1)(a) of Section 231.36 20/ ) indicating that its enumeration of the "seven deadly sins" was a non-exclusive listing of those things for which a continuing contract teacher could be suspended or dismissed. The absence of such language from Section 231.36(4)(c) reflects the Legislature's intent to limit the grounds for suspension or dismissal of continuing contract teachers during the school year to these "seven deadly sins." See Leisure Resorts, Inc., v. Frank J. Rooney, Inc., 654
So. 2d 911, 914 (Fla. 1995)("When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it
where it has been excluded."); In re Order on Prosecution of
Criminal Appeals by the Tenth Judicial Circuit Public Defender,
561 So. 2d 1130, 1137 (Fla. 1990)("Courts should not add additional words to a statute not placed there by the legislature, especially where uncertainty exists as to the intent of the legislature."); Department of Business Regulation v. Hyman, 417 So. 2d 671 (Fla. 1982)("If the legislature had intended that untimely orders rendered in proceedings in which the agency is a protagonist would always be unenforceable, . . . it would have included the necessary language in Section 120.59(1) to impose such sanction as it did in other parts of chapter 120."); Chapman v. Sheffield, 750 So. 2d 140, 143 n1. (Fla. 1st DCA 2000)("Had the legislature intended to authorize other persons to sign for the defendant in a representative capacity, it could have expressed that intention in the statute [as it did in Section 48.031(1)(a), Florida Statutes]. The absence of such a provision supports our conclusion that the defendant must sign the receipt."); Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988)("This position is further supported by the general principle of statutory construction expressio unius est exclusio alterius that the
mention of one thing implies the exclusion of another. Hence, where as here, a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be
construed as excluding from its operation all those not expressly mentioned."); Bishop Associates Limited Partnership v. Belkin, 521 So. 2d 158, 161 (Fla. 1st DCA 1988)("Had the legislature wanted to qualify developers by lease duration in section 718.301 Florida Statutes, it could have easily inserted the same terms it used in section 718.502(1). But no such language is present."); Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So. 2d 515, 516 (Fla. 1st DCA 1984)("The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended."); Ocasio v. Bureau of Crimes Compensation, Division of Workers' Compensation, 408 So. 2d 751, 753 (Fla. 3d DCA 1982)("[I]f it wished, the legislature could easily have accomplished the result achieved below simply by using the familiar and unequivocal expression 'husband or wife' or, even more obviously, 'spouse'-as it significantly did in another portion, subsection (1)(c), of the identical statute.
Its deliberate use of a quite different term in (2)(c) is strong evidence indeed that it intended a quite different meaning."); and Wanda Marine Corporation v. Department of Revenue, 305 So.
2d 65, 69 (Fla. 1st DCA 1975)("It is our view that the word 'state' as used in the exemption proviso of Section 212.06(8), means one of the states of the United States and not a foreign entity. . . . Had the legislature intended for the term 'state'
to include foreign countries it could have done so by adding the phrase 'or foreign country' after the word 'state' in the exemption proviso, as it did do in Section 212.06(2)(b) in defining the term 'dealer.'").
"Immorality," "misconduct in office," "incompetency," "gross insubordination," "willful neglect of duty," "drunkenness," and "moral turpitude," as those terms are used in Section 231.36(4), Florida Statutes, are defined in the State Board of Education's Rule 6B-4.009, Florida Administrative Code, which, at all times material to the instant case, has provided as follows:
6B-4.009 Criteria for Suspension and Dismissal.
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section
231.09, Florida Statutes); 21/ (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. 22/
Drunkenness is defined as:
That condition which exists when an individual publicly is under the influence of alcoholic beverages or drugs to such an extent that his or her normal faculties are impaired; or
Conviction on the charge of drunkenness by a court of law.
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
A continuing contract teacher whom the School Board seeks to suspend or dismiss is entitled to an administrative hearing on the matter held in accordance with Chapter 120, Florida Statutes. See McIntyre v. Seminole County School Board, 2001 WL 227363, 26. Fla. L. Weekly D707a (Fla. 5th DCA March 9, 2001), citing Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993)("[U]nder Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute.").
In addition to affording the teacher a hearing, the district school board must provide the teacher, in advance of the hearing, with a written notice of the alleged grounds for
suspension or dismissal. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring); see also Clark v. School Board of Lake County, 596 So. 2d 735, 738 (Fla. 5th DCA 1992)("A
school teacher on a continuing contract must be given notice of the charges against her before dismissal ").
The teacher's suspension or dismissal may be based only upon the grounds specifically alleged in this written notice. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); and Klein v. Department of Business and Professional Regulation, 625 So.
2d 1237, 1238-39 (Fla. 2d DCA 1993).
At the administrative hearing, the burden is on the district school board to prove the allegations contained in the notice.
Unless the collective bargaining agreement covering the bargaining unit of which the teacher is a member provides otherwise (and there is no indication that the collective
bargaining agreement covering Respondent's bargaining unit contains such a provision), the district school board's proof need only meet the preponderance of the evidence standard. 23/ See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v.
Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v.
School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA
1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v.
School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence
to support both charges by a preponderance of the evidence standard.").
In the instant case, the School Board seeks to dismiss Respondent, but has not charged him with "immorality," "misconduct in office," "incompetency," "gross insubordination," "willful neglect of duty," "drunkenness," or "conviction of a crime involving moral turpitude," notwithstanding that Respondent holds a continuing contract. Rather, it has alleged that Respondent should be dismissed pursuant to Section 231.29(3), Florida Statutes, for failure to correct noted performance deficiencies within the 90-day period (which commenced on December 17, 1998) that he was on "performance probation."
Section 231.29(3), Florida Statutes, presently provides as follows:
The assessment procedure for instructional personnel and school administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate. The procedures must comply with, but are not limited to, the following requirements:
An assessment must be conducted for each employee at least once a year. The assessment must be based upon sound educational principles and contemporary research in effective educational practices. Beginning with the full implementation of an annual assessment of learning gains, the assessment must primarily use data and indicators of improvement in student
performance assessed annually as specified in s. 229.57 and may consider results of peer reviews in evaluating the employee's performance. Student performance must be measured by state assessments required under
s. 229.57 and by local assessments for subjects and grade levels not measured by the state assessment program. The assessment criteria must include, but are not limited to, indicators that relate to the following:
Performance of students.
Ability to maintain appropriate discipline.
Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.
Ability to plan and deliver instruction, including the use of technology in the classroom.
Ability to evaluate instructional needs.
Ability to establish and maintain a positive collaborative relationship with students' families to increase student achievement.
Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.
All personnel must be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.
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 of schools for the purpose of reviewing the employee's contract. If the employee is assigned to a school designated in performance grade category "D" or "F" and was rated unsatisfactory on any function related to the employee's instructional or administrative duties, the superintendent of schools, in consultation with the employee's evaluator, shall review the employee's performance assessment. If the superintendent of schools determines that the lack of general knowledge, subject area expertise, or other professional competencies contributed to the employee's unsatisfactory performance, the superintendent of schools shall notify the district school board of that determination. The district school board shall require those employees, as part of their performance probation, to take and receive a passing score on a test of general knowledge, subject area expertise, or professional competencies, whichever is appropriate. The tests required by this paragraph shall be those required for certification under this chapter and rules of the State Board of Education. 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.
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.a. If the employee holds a professional service contract as provided in s. 231.36, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following 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 who holds a professional service contract 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 who holds a professional service contract 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.
b. 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 of schools. Within 14 days after receiving the evaluator's recommendation, the superintendent of schools must notify the employee who holds a professional service contract in writing whether the performance deficiencies have been satisfactorily corrected and whether the superintendent of schools will recommend that the district school board continue or
terminate his or her employment contract. If the employee wishes to contest the superintendent of schools' recommendation, the employee must, within 15 days after receipt of the superintendent of schools'
recommendation, submit a written request for a hearing. The hearing shall be conducted at the district school board's election in accordance with one of the following procedures:
A direct hearing conducted by the district school board within 60 days after 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 district school board shall be required to sustain the superintendent of schools' recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or
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 district school board. A majority vote of the membership of the district school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the district school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.
It is beyond reasonable debate that Section 231.29(3), as it currently reads, authorizes district school boards to place an underperforming teacher on "performance probation" for 90 days
and to terminate the teacher for failing to correct noted performance deficiencies within the performance probationary period only if the teacher holds a professional service contract ("performance probation"/termination provisions). The statute's "performance probation"/termination provisions, however, were not always as clear and unambiguous in this regard as they are now.
Prior to July 1, 1997, Section 231.29, Florida Statutes, did not contain any "performance probation"/termination provisions. Such provisions were found in Section 231.36(3)(e), Florida Statutes, which provided as follows:
A professional service contract shall be renewed each year unless the superintendent, after receiving the recommendations required by s. 231.29(4), charges the employee with unsatisfactory performance as determined under the provisions of s. 231.29 and notifies the employee in writing, no later than 6 weeks prior to the end of the postschool conference period, of performance deficiencies which may result in termination of employment, if not corrected during the subsequent year of employment (which shall be granted for an additional year in accordance with the provisions in subsection (1)). Except as otherwise hereinafter provided, this action shall not be subject to the provisions of chapter 120, but the following procedures shall apply:
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.
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.
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.
Not later than 6 weeks prior to the close of the postschool conference period of the subsequent year, the superintendent, after receiving and reviewing the recommendation required by s. 231.29(4), shall notify the employee, in writing, whether the performance deficiencies have been corrected. If so, a new professional service contract shall be issued to the employee. If the performance deficiencies have not been corrected, the superintendent may notify the school board and the employee, in writing, that the employee shall not be issued a new professional service contract; however, if the recommendation of the superintendent is not to issue a new professional service contract, and if the employee wishes to contest such recommendation, the employee will have 15 days from receipt of the superintendent's recommendation to demand, in writing, a hearing. In such hearing, the employee may raise as an issue, among other things, the sufficiency of the superintendent's charges of unsatisfactory performance. Such hearing shall be conducted at the employee's election in accordance with one of the following procedures:
A direct hearing conducted by the school board within 45 days of receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of 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
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 45 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.
Under former 231.36(3)(e), "a poorly performing [professional services contract] teacher was afforded an entire school year to remedy deficiencies identified during the preceding year. If those deficiencies were not corrected in the year following a notice of unsatisfactory performance, the teacher's employment could be terminated by not renewing his professional service contract." Broward County School Board v. Clemons, 2000 WL
1902214, 15 (Fla. DOAH 2000)(Recommended Order).
The Legislature, through the enactment of Chapter 97- 310, Laws of Florida, amended Sections 231.29(3) and 231.36(3)(e), Florida Statutes, effective July 1, 1997, to read, respectively, as follows:
Section 231.29(3)
The assessment procedure for instructional personnel shall comply with, but shall not be limited to, the following requirements:
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:
Ability to maintain appropriate discipline.
Knowledge of subject matter. The district school board shall make special provisions for evaluating teachers who are assigned to teach out-of-field.
Ability to plan and deliver instruction.
Ability to evaluate instructional needs.
Ability to communicate with parents.
Other professional competencies, responsibilities, and requirements as established by rules of the State Board of Education and policies of the district school board.
All personnel shall be fully informed of the criteria and procedures associated with the assessment process before the assessment takes place.
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.
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:
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.
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.
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:
A direct hearing conducted by the school board within 60 days after 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
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.
Section 231.36(3)(e)
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. 24/ 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
(f) have been exhausted and the professional service contract is subsequently renewed.
When the changes made to Section 231.29(3)(d) are considered in light of the changes simultaneously made to Section 231.36(3)(e), and further taking into consideration that the Legislature, in Chapter 97-310, Laws of Florida, made no changes
to Section 231.36(4) dealing with continuing contract teachers, it is apparent that the new Section 231.29(3)(d) was merely "[i]ntended to replace the procedures of former Section 231.36(3)(e)" with a "speeded up . . . process for eliminating poorly performing [professional services contract] teachers," and it was not intended to apply to continuing contract teachers. Broward County School Board v. Clemons, 2000 WL 1902214, 15 (Fla. DOAH 2000)(Recommended Order).
In 1999, after the initiation of the instant dismissal proceeding, the Legislature, through Chapter 99-398, Laws of Florida, which took effect on June 21, 1999, added clarifying language to Section 231.29(3)(d), Florida Statutes, so that it would be obvious merely from a reading of the statute itself (without having to resort to legislative history or an examination of any other provision of Chapter 231, Florida Statutes) that only an employee who "holds a professional service contract" may be placed on "performance probation" for
90 days and terminated for failing to correct noted performance deficiencies within the performance probationary period. See State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So. 2d 529, 531 (Fla. 1973)("The mere change of
language does not necessarily indicate an intent to change the law for the intent may be to clarify what was doubtful and to safeguard against misapprehension as to existing law. The
language of the amendment in 1971 was intended to make the statute correspond to what had previously been supposed or assumed to be the law. The circumstances here are such that the Legislature merely intended to clarify its original intention rather than change the law."). As amended by Chapter 99-398, Laws of Florida, Section 231.29(3)(d) read as follows (with the clarifying language added by the Legislature underlined):
(d) 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.a. If the employee holds a professional service contract as provided in s. 231.36, the employee shall be placed on performance probation and governed by the provisions of this section for 90 calendar days following 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 who holds a professional service contract 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 who holds a professional service contract 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.
b. 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 who holds a professional service contract 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:
A direct hearing conducted by the school board within 60 days after 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
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.
Because he has been a continuing contract teacher at all times material to the instant case, Respondent may not be dismissed pursuant to Section 231.29(3)(d), Florida Statutes, for failure to correct noted performance deficiencies within the 90-day period (which commenced on December 17, 1998) that he was on "performance probation." As a continuing contract teacher, he may dismissed only for committing one (or more) of the "deadly sins" enumerated in Section 231.36(4), Florida Statutes, as they are described in the State Board of Education's Rule 6B- 4.009, Florida Administrative Code. Inasmuch as the School Board has not alleged (nor does the preponderance of the record evidence establish) that Respondent has committed any of these "deadly sins," it is without authority to terminate Respondent's continuing contract and dismiss him.
A continuing contract teacher, like Respondent, who has been suspended without pay pending the outcome of a dismissal proceeding is entitled to immediate reinstatement and
to have his "back salary" paid if the district school board fails to prove, as did the School Board in the instant case, that the teacher's dismissal is warranted. See Section 231.36(4)(c), Florida Statutes; see also School Board of Seminole County v. Morgan, 582 So. 2d 787, 788 (Fla. 5th DCA
1991)("If the charges [made by a district school board against a continuing contract teacher] are not sustained, the teacher must be immediately reinstated and back salary must be paid."); and Krueger v. School District of Hernando County, 540 So. 2d 180,
181 (Fla. 5th DCA 1989)("Pursuant to statute, a continuing contract teacher may be suspended or dismissed during any school year period on specified charges. . . . If the charges are not sustained, the teacher "shall be immediately reinstated, and his back pay shall be paid." This statute clearly requires payment of Krueger's salary from August 5, 1986, although it does not appear to specifically refer to anything more than the time the teacher is suspended. It appears to us that Krueger has a right to receive back pay for the time she was entitled to receive a salary, pursuant to her contract with the school board.").
The granting of such relief to a prevailing continuing contract teacher in a dismissal proceeding is mandatory. It is not a matter of discretion. 25/ See Neal v. Bryant, 149 So. 2d
529 (Fla. 1962)("Upon a full consideration of the provisions of the statute in question, it is our determination that the
provisions thereof regarding a preliminary investigation as to probable cause are mandatory in nature. This construction is compelled by the use of the word 'shall' in the statute in question which, according to its normal usage, has a mandatory connotation.").
The School Board takes the position that "an award of back pay [in the instant case] is precluded because of [Respondent's] admitted inability to perform his job as of April 5, 1999, prior to his suspension." This argument must be rejected because Section 231.36(4)(c), Florida Statutes, mandates that "back salary shall be paid" to a prevailing continuing contract teacher. Cf. Mayer v. Multistate Legal
Studies, Inc., 61 Cal. Rptr.2d 336 (Cal. App. 1997)("In our view,
plaintiff is correct that the Pichon decision does not stand for the proposition that a wrongfully terminated employee is barred as a matter of law from recovering any contract damages for any period of time that the employee was disabled. Defendant
nevertheless contends that to award plaintiff lost income damages for his period of disability would place him in a better position than if the breach had never occurred. We are not persuaded by that argument. Defendant's wrongful act, not plaintiff's illness, prevented plaintiff from performing his duties under the contract."); and Lauderdale County Board of Education v. Moore, 574 So. 2d 811, 812 (Ala. 1990)(" At the
outset, we note that the teacher here is a tenured teacher, subject to the provisions of the Alabama Teacher Tenure Act (act), Ala. Code 1975, [Section] 16-24-1 et seq. It is well established that the act's primary purpose is to secure permanency in the teaching field. . . . The act is remedial in nature and is to be liberally construed in favor of the
teacher. . . . Furthermore, we note that when a cancellation of a teacher's contract is determined to be improper, the suspension becomes ineffective and a teacher is entitled to back salary from the date of his last salary payment. . . . In view of the above, it is clear that the teacher is entitled to back pay because his termination was improper. Additionally, we find that, in light of the overall purpose of the act, the trial court was correct in its determination that the teacher did not have to use any of his accumulated leave during the period he was illegally suspended. The reason the teacher could not teach was that he had been terminated by the board. It is this court's opinion that whether or not he was sick during this period is of no consequence as concerns his right to full back pay."). To relieve itself of its obligation to pay a continuing contract teacher in its employ on the basis of the teacher's alleged "inability to perform his job," a district school board, in accordance with Section 231.36(4)(c), Florida Statutes, must first charge the teacher with "incompetency" (as that term is
used in Section 231.36(4)(c)) due to "incapacity" (as that term is defined in the State Board of Education's Rule 6B- 4.009(1)(b), Florida Administrative Code) and then present sufficient evidence to sustain the charge. No such charge has been filed by the School Board against Respondent in the instant case.
Moreover, even if the School Board had the discretion, upon a sufficient showing of Respondent's "inability to perform his job" during the "back salary" period, to decline to award Respondent his "back salary" in the instant case, it would nonetheless be inappropriate for the School Board to do so since a sufficient showing of Respondent's "inability to perform his job" during the "back salary" period was not made by the School Board.
The School Board suggests that Respondent's "statements in his application for long term disability benefits are determinative" of his "inability to perform his job" during the "back salary" period. According to the School Board, having made these statements, Respondent is now "estopped from asserting that he could have performed his job had he not been suspended." The undersigned disagrees. Respondent's application for long-term disability benefits was denied and therefore there was no adverse reliance upon any of the statements he made in his application. 26/ Absent such
reliance, there can be no estoppel. See Olin's, Inc. v. Avis
Rental Car System of Florida, 104 So. 2d 508 (Fla. 1958)("Nor can the District Court's decision be sustained upon the theory of estoppel to maintain inconsistent positions in pleading, since this rule is not applicable unless the previous position was successfully maintained."); Dubois v. Osborne, 745 So. 2d
479 (Fla. 1st 1999)("The doctrine of estoppel against inconsistent positions serves to prevent 'a party who has gained something from the assertion of its first position to, by the assertion of the second, inconsistent position, gain something more, to which it would not have been entitled under the first position.'"); Palm Beach County v. Boca Development Associates, Ltd., 485 So. 2d 449 (Fla. 4th DCA 1986)("Boca Development,
however, has overlooked a significant point: the doctrine of estoppel against inconsistent positions is not applicable to cases in which the party was unsuccessful in the prior proceeding."); and Cleveland v. Policy Management Systems Corp.,
119 S.Ct. 1597 (1999)("[I]f an individual has merely applied for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by our legal system. Our ordinary rules recognize that a person may not be sure in advance upon which legal theory she will succeed, and so permit parties to 'set forth two or more statements of a claim or defense alternately or hypothetically,'
and to 'state as many separate claims or defenses as the party has regardless of consistency.'"). In any event, there is no irreconcilable conflict between any statement made by Respondent in his application for long-term disability benefits and the position that, throughout the "back salary" period, he would have been able, with reasonable accommodation, 27/ to have discharged his contractual duties as a teacher had he not been suspended for "unsatisfactory job performance." In his application, Respondent represented that he was, at the time of the application, and had been since April 5, 1999, unable to "perform his job" due to his "condition," which he described as "c[h]ronic anxiety state/job stress." 28/ He further indicated that he expected to return to work ("if [he was] allowed" to), but he did not known when. The application was dated May 14, 1999, four days prior to the date that Respondent was suspended without pay for "unsatisfactory job performance." Accordingly, the representations that Respondent made in the application regarding his inability to "perform his job" related to a period of time that predated the commencement of, and therefore was not within, the "back salary" period. Furthermore, these representations did not specifically address the issue of whether he was able to perform the essential duties of his job with reasonable accommodation. See Norris v. Allied-Sysco Food Services, Inc., 948 F.Supp. 1418 (N.D. Cal. 1996)("A statement
that an employee cannot perform her regular work or duties is not inconsistent with the position that, if the employee were to be reasonably accommodated through modification of those duties or the manner in which they are performed, the employee would be able to perform the main duties of the job.").
The evidentiary record in the instant case also includes the Long Term Disability Claim Physician's Statement completed and submitted to UNUM by Respondent's treating physician, Dr. Hamilton. The assertions made, and opinions expressed, in this document by Dr. Hamilton (who did not testify at the final hearing in this case) constitute hearsay evidence that would not be admissible over objection in a civil proceeding. "Hearsay is admissible in administrative proceedings, but hearsay alone is insufficient to support a finding unless it would be admissible over objection in a civil action." Durall v. Unemployment Appeals Commission, 743 So. 2d
166 (Fla. 4th DCA 1999). Unlike Respondent's application for long-term disability benefits, Dr. Hamilton's Long Term Disability Claim Physician's Statement bears a post-suspension date, specifically, June 3, 1999, which was the 16th day of the "back salary" period; however, Dr. Hamilton asserted in his statement that he had last seen Respondent on April 20, 1999, which was almost a month prior to the beginning of the "back salary" period. It therefore appears that what Dr. Hamilton
wrote in his statement concerning Respondent's medical condition and inability to work was based upon pre-suspension information. In any event, to the extent that Dr. Hamilton's statement contains assertions and opinions regarding Respondent's post- suspension medical condition and inability to work, these "out of court" assertions and opinions, standing alone, as they do, are insufficient to support a finding that Respondent was unable to work during the "back salary" period. See State Department of Administration, Division of Retirement v. Porter, 591 So. 2d
1108 (Fla. 2d DCA 1992).
In view of the foregoing, Respondent should be immediately reinstated and paid his "back salary" (in an amount to be determined by the School Board, with Respondent's input).
29/
Based upon the foregoing Findings of Fact and Conclusions
of Law, it is hereby
RECOMMENDED that the School Board enter a final order immediately reinstating Respondent and paying him his "back salary."
DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 13th day of April, 2001.
ENDNOTES
1/ At the suggestion of a school administrator, Respondent, on occasion, had the students in his class do classroom assignments together in small groups. While engaged in this "cooperative learning" experience, the students had need to talk to one another.
2/ Respondent permitted the students in his class to leave their seats to go to the pencil sharpener and to the waste paper basket and to pick up work sheets that they needed.
3/ With Ms. Mendelson's permission, Respondent had kept a record of his students' grades and attendance on computer printout sheets.
4/ Respondent turned his back to his students when he wrote on the blackboard.
5/ The "papers" that Respondent "handed out" were tests he had marked. His "hand[ing] [them] out . . . one by one" was in accordance with School Board policy.
6/ There were occasions where Respondent, relying upon his years of experience in the classroom, deemed it best to "deliberately overlook certain kinds of behavior to keep the class moving."
7/ The students' grades were actually in the grade book, although not in an obvious place.
8/ It was Respondent's responsibility to implement, not to develop, the "504 plan[s]" of the "504 student[s]" in his class."
9/ Under "IPAS," a "satisfactory" rating in "professional competencies" indicates that the teacher "[c]omplies with Florida Statutes, State Board of Education Rules, School Board of Broward County Policies, and other applicable regulations."
10/ Among those asked to render Respondent assistance were Michael Lyons and David Watkins, both of whom, in connection with their efforts to help Respondent, observed Respondent in the classroom. Petitioner's Exhibit W (offered by the School Board and received in evidence) is Mr. Lyon's written account of his observation. It reads as follows:
Mr. Jones was teaching a math lesson. He was utilizing the overhead to illustrate examples to solve the math problems. Mr. Jones would first demonstrate to the class the methods of solving the problem. He would then put up a similar problem and ask the class for the steps to solve the problem. He indicated to the class to raise their hand if they knew the next step in the process. There were a few students who did not adhere to his directions of raising their hands. He indicated to them that they needed to raise their hands. When the demonstration lesson ended, Mr. Jones and another student passed out student work to be put in student folders.
Petitioner's Exhibit BB (also offered by the School Board and received in evidence) is a memorandum, dated "February 1999," that Mr. Watkins wrote to Mr. Fegers concerning his (Mr.
Watkins') observation. It reads as follows:
[I]n previous discussions with Mr. Jones, we discussed how to get a class started effectively. I observed him start his class.
He had all of his material out. He had his work up on the board and he rearranged his desks so students could walk in the classroom. The students came in, sat down and were getting stared with the assignment on the board.
I found it difficult to hear the morning announcements on the intercom. The intercom didn't seem to be working properly. I found it difficult to walk around the room because the rows were so narrow. I saw students working and asking Mr. Jones questions about the lesson. Some students came to class 30 minutes late.
I observed Mr. Jones implementing the strategies suggested. His room was neat and orderly.
11/ In fact, there were classroom rules posted, but as Respondent conceded during his testimony at hearing, they were not the type of rules "they [the administration] had requested" he post. New classroom rules designed to meet the administration's requirements had been written, but not yet printed for purposes of posting.
12/ Respondent was using an overhead projector.
13/ The lesson Respondent was teaching "came directly from the materials that w[ere] given [him] from the math department head."
14/ After a while, Respondent noticed the magazine and asked the students to "put [it] away."
15/ After receiving the "attendance sheet" back from the student, Respondent verified that the information on it was correct and then entered that information in the "official [attendance] book."
16/ There was no evidence presented at the final hearing that the students in Respondent's classes performed poorly relative to their peers in the academic subjects that Respondent taught.
17/ Dr. Hamilton explained, after this entry on the form, "[h]e "states work related stress."
18/ Dr. Hamilton indicated in his statement that he was a general practice physician, who specialized in surgery.
19/ The only changes that have been made to Section 231.36(4), Florida Statutes, since the beginning of the 1998-99 school year have been the addition (in Subsection (4)(c)) of the language "as these terms are defined by rule of the State Board of Education (made by the 1999 Florida Legislature in Section 58 of Chapter 99-398, Laws of Florida) and the substitution of "district school board" for "school board," "superintendent of schools" for "superintendent," and "superintendent of schools'" for "superintendent's" (made by the 2000 Florida Legislature in Section 32 of Chapter 2000-301, Laws of Florida).
20/ Subsection (1)(a) of Section 231.36, Florida Statutes, reads as follows:
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, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
21/ If a School Board instructional employee receives, at the end of his performance probationary period, a "satisfactory" rating in the "performance area" of "professional competencies" (the "performance indicator" for which is: "[c]omplies with Florida Statutes, State Board of Education Rules, School Board of Broward County Policies, and other applicable regulations"), as did Respondent in the instant case, the employee cannot later be found guilty of and dismissed for (pursuant to Rule 6B- 4.009(1)(a)(1), Florida Administrative Code) "repeated failure to perform duties prescribed by law." (during the performance probationary period). See Broward County School Board v.
Clemons, 2000 WL 1902214, 20 (Fla. DOAH 2000)(Recommended Order).
22/ With respect to the requirement that the refusal be "intentional," the First District Court of Appeal, in Forehand v. School Board of Gulf County, 600 So. 2d 1187, 1193 (Fla. 1st DCA 1992), has stated the following:
The word "intent" is used throughout the Restatement of Torts, 2nd, to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Sec. 8A. Black's Law Dictionary 727 (5th Ed. 1979)(emphasis added). An "intentional" act has been defined as one "done deliberately." American Heritage Dictionary of the English Language 683 (New College ed. 1979) (emphasis added).
23/ Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, 1997 WL 1052595 (Fla. DOAH 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . .
However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, require the more stringent standard of proof: clear and convincing evidence.").
24/ "[P]aragraph (f)" provided as follows:
(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:
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.
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.
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.
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:
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
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.
By "exempt[ing] holders of existing [professional service] contracts from [Section 231.29(3)(d)'s] new procedures -- and basis -- for dismissal during the term of a contract," the Legislature "ensured that Section 231.29(3)(d) would not run afoul of Article I, Section 10 of the Florida Constitution, which prohibits laws that impair the obligation of contracts." Broward County School Board v. Clemons, 2000 WL 1902214, 17 (Fla. DOAH 2000)(Recommended Order).
25/ Had the Legislature intended to make the award of "back salary" to a prevailing continuing contract teacher in a dismissal proceeding discretionary, it would have used language like that it used in Sections 447.208(3)(b) and 447.208 (3)(e), Florida Statutes (dealing with "back pay" awards in state career service appeal cases) and Section 447.503(6)(a), Florida Statutes (dealing with "back pay" awards in public sector unfair labor practice cases), which statutory provisions provide as follows:
Section 447.503(6)(a)
If, upon consideration of the record in the case, the commission finds that an unfair labor practice has been committed, it shall issue and cause to be served an order requiring the appropriate party or parties to cease and desist from the unfair labor practice and take such positive action, including reinstatement of employees with or without back pay, as will best implement the general policies expressed in this part.
However, no order of the commission shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment of any back pay, if the individual was suspended or discharged for cause.
Section 447.208(3)(b) Upon a finding that just cause did not exist for the demotion, suspension, or dismissal, the commission may order the reinstatement of the employee, with or without back pay.
Section 447.208(3)(e) Any order of the commission issued pursuant to this subsection may include back pay, if applicable.
26/ The School Board cites Baker v. Asarco, 1995 WL 795663 (D. Ariz. 1995) for the proposition that "an admission on a sworn application for disability benefits [is] conclusive of the person's inability to perform his job." In Baker, however, unlike in the instant case, the employee received the disability benefits for which he had applied.
27/ Under the Florida Civil Rights Act and the Americans with Disabilities Act, "employers [must] make reasonable accommodations for their disabled employees." Wal-Mart Stores, Inc. v. Liggon, 668 So. 2d 259 (Fla. 1st DCA 1996). "Reasonable accommodations . . . may include, but are not limited to, additional unpaid leave, job restructuring, a modified work schedule, or reassignment." McCaw Cellular Communications of Florida, Inc. v. Kwiatek, 763 So. 2d 1063 (Fla. 4th DCA 1999).
28/ At the final hearing, Respondent testified that, notwithstanding what he had stated in his application for long- term disability benefits, in hindsight, he was "not certain whether [he] could do that job or not."
29/ If there are disputed issues of material fact that need to be resolved before Respondent's "back salary" can be calculated, Respondent must be afforded the opportunity to have a "formal administrative hearing" on these issues. See Tieger v. School Bd. of Palm Beach County, 717 So. 2d 172 (Fla. 4th 1998)("Because a disputed issue of material fact exists as to whether Tieger was terminated within the probationary period, he is entitled to a formal administrative hearing.").
COPIES FURNISHED:
Mark F. Kelly, Esquire
1718 East 7th Avenue, Suite 301 Post Office Box 75638
Tampa, Florida 33675-0638
Carmen M. Rodriguez, Esquire 9245 Southwest 157th Street Suite 209
Miami, Florida 33157
Dr. Frank R. Petruzlelo Superintendent of Schools Broward County School Board 600 Southeast Third Avenue
Fort Lauderdale, Florida 33301-3125
Honorable Charlie Crist Commissioner of Education 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.
| Issue Date | Proceedings |
|---|---|
| Aug. 06, 2001 | Final Order filed. |
| Apr. 13, 2001 | Recommended Order issued (hearing held January 31 and February 1, 2001) CASE CLOSED. |
| Apr. 13, 2001 | Recommended Order cover letter identifying hearing record referred to the Agency sent out. |
| Mar. 28, 2001 | Respondent`s Exhibits filed. |
| Mar. 23, 2001 | Respondent`s Proposed Recommended Order (filed via facsimile). |
| Mar. 23, 2001 | Proposed Recommended Order filed by C. Rodriguez. |
| Mar. 16, 2001 | Order issued (proposed recommended orders shall be filed by March 23, 2001). |
| Mar. 15, 2001 | Respondent`s Unopposed Motion for Extension of Time (filed via facsimile). |
| Feb. 12, 2001 | Petitioner`s Exhibits filed. |
| Jan. 31, 2001 | CASE STATUS: Hearing Held; see case file for applicable time frames. |
| Jan. 29, 2001 | Notice of Change of Address filed by C. Rodriguez. |
| Jan. 24, 2001 | Joint Prehearing Stipulation (filed via facsimile). |
| Jan. 19, 2001 | Order issued (Petitioner`s Motion for Summary Disposition is denied). |
| Jan. 18, 2001 | Order issued (parties shall file their joint prehearing stipulation by January 19, 2001). |
| Jan. 18, 2001 | Respondent`s Opposition to Petitioner`s Motion for Summary Disposition (filed via facsimile). |
| Jan. 16, 2001 | Petitioner`s Motion for Extension of Time to File Joint Pre-Hearing Stipulation or for Other Appropriate Remedy (filed via facsimile). |
| Jan. 16, 2001 | Petitioner`s Motion for Summary Disposition (filed via facsimile). |
| Dec. 26, 2000 | (C. Rodriquez) Re-Notice of Taking Deposition filed. |
| Dec. 11, 2000 | Order Granting Continuance and Re-scheduling Hearing issued (hearing set for January 31 and February 1, 2001; 9:00 a.m.; Fort Lauderdale, FL). |
| Dec. 05, 2000 | Petitioner`s Response to Notice of Hearing (filed via facsimile). |
| Nov. 30, 2000 | Notice of Hearing by Video Teleconference issued (video hearing set for December 15, 2000; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL). |
| Nov. 20, 2000 | Respondent`s Notice to Administrative Law Judge (filed via facsimile). |
| Oct. 30, 2000 | Order Granting Continuance and Placing Case in Abeyance issued (parties to advise status by November 21, 2000). |
| Oct. 27, 2000 | Joint Request for Continuance (filed via facsimile). |
| Oct. 16, 2000 | Order Granting Continuance and Re-scheduling Video Teleconference issued (video hearing set for October 30 and 31, 2000; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL). |
| Oct. 06, 2000 | Respondent`s Amended Response to Petitioner`s Motion for Rescheduling (filed via facsimile). |
| Oct. 05, 2000 | Respondent`s Response to Petitioner`s First Request for Production of Documents filed. |
| Oct. 03, 2000 | Respondent`s Response to Petitioner`s Motion for Rescheduling (filed via facsimile). |
| Oct. 02, 2000 | Petitioner`s Notice of Withdrawal of Motion to Compel (filed via facsimile). |
| Sep. 27, 2000 | Petitioner`s First Request for Production of Documents to Respondent (filed via facsimile). |
| Sep. 27, 2000 | Petitoner`s Motion to Compel Discovery (filed via facsimile). |
| Sep. 25, 2000 | Petitioner`s Motion for Rescheduling (filed via facsimile). |
| Aug. 08, 2000 | Notice of Appearance (filed by M. Kelly via facsimile). |
| Jul. 19, 2000 | Notice of Hearing by Video Teleconference sent out. (video hearing set for October 23 and 24, 2000; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL) |
| Jul. 18, 2000 | Respondent`s Status Report (filed via facsimile) |
| Jul. 06, 2000 | Respondent`s Status Report (filed via facsimile) |
| Mar. 24, 2000 | Order Granting Continuance and Placing Case in Abeyance sent out. (Parties to advise status by April 24, 2000.) |
| Mar. 23, 2000 | Petitioner`s Motion for Continuance (filed via facsimile). |
| Jan. 07, 2000 | Order of Pre-hearing Instructions sent out. |
| Jan. 07, 2000 | Notice of Hearing sent out. (hearing set for March 30 and 31, 2000; 9:00 a.m.; Fort Lauderdale, FL) |
| Jan. 07, 2000 | Order of Pre-hearing Instructions sent out. |
| Dec. 16, 1999 | Joint Status Report filed. |
| Nov. 22, 1999 | Order Granting Continuance sent out. (Parties to advise status by December 2, 1999.) |
| Nov. 18, 1999 | Petitioner`s Notice of Scheduling Conflict filed. |
| Oct. 14, 1999 | Notice of Hearing sent out. (hearing set for January 24 through 27, 2000; 9:30 a.m.; Fort Lauderdale, FL) |
| Oct. 14, 1999 | Order of Pre-hearing Instructions sent out. |
| Oct. 05, 1999 | Joint Response to Initial Order (filed via facsimile). |
| Sep. 27, 1999 | Petitioner`s First Set of Interrogatories to Respondent (filed via facsimile). |
| Sep. 08, 1999 | Letter to D. Orr from G. Irzkowitz Re: 4/30/99 correspondence filed. |
| Sep. 08, 1999 | Letter to Judge Smith from E. Marko Re: Recommendation of Termination filed. |
| Sep. 08, 1999 | Letter to Judge Smith from J. Stewart Re: Representation filed. |
| Sep. 08, 1999 | Initial Order issued. |
| Sep. 02, 1999 | Agency Action Letter (filed via facsimile). |
| Sep. 02, 1999 | Recommendation of Termination (letter) (filed via facsimile). |
| Sep. 02, 1999 | Request for Hearing (letter) (filed via facsimile). |
| Sep. 02, 1999 | Agency Referral Letter (filed via facsimile). |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 17, 2001 | Agency Final Order | |
| Apr. 13, 2001 | Recommended Order | Continuing contract teacher could not be dismissed, pursuant to Section 231.29, Florida Statutes, for failure to correct performance deficiencies within a 90-day probationary period during the 1998-99 school year. |
JOHN L. WINN, AS COMMISSIONER OF EDUCATION vs ROBERT THOR NEGEDLY, 99-003735 (1999)
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION vs JOHN MURPHY, 99-003735 (1999)
PAM STEWART, AS COMMISSIONER OF EDUCATION vs COTTA UNGERER, 99-003735 (1999)
JOHN WINN, AS COMMISSIONER OF EDUCATION vs ZINA STEINSIEK, 99-003735 (1999)
JEANINE BLOMBERG, AS COMMISSIONER OF EDUCATION vs LINDA PEOPLES, 99-003735 (1999)
