STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-1625

)

PAUL HUNTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 29 and 30, 2000, and December 4 through 6, 2000, in West Palm Beach, Florida, before Claude B. Arrington, a duly- designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gordon Rogers, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A.

200 South Biscayne, Suite 3600 Miami, Florida 33131

For Respondent: Matthew E. Haynes, Esquire

Chamblee, Johnson, Haynes & Martinelli, P.A.

The Barristers Building 1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner has cause to terminate Respondent's continuing contract of employment as a classroom teacher.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, Respondent taught high school English at Boca Raton Community High School (BRCHS) pursuant to a continuing contract of employment. BRCHS is a public school located in Palm Beach County, Florida. On April 17, 2000, Petitioner filed a three-count Administrative Complaint that alleged certain facts pertaining to Respondent’s performance and evaluations of that performance. Based on those facts, Petitioner alleged that Respondent’s continuing contract should be terminated as of the end of the 1999-2000 school year.

Count I of the Administrative Complaint alleged that despite substantial remediation assistance, Respondent failed to correct teaching deficiencies in the following areas:

1. management of student conduct;

2. instructional organization and development;

3. establishes an appropriate classroom climate;

4. ability to plan effectively;

5. ability to evaluate instructional needs; and

6. develops and maintains an accurate record keeping system.

Following an unsatisfactory evaluation, Respondent was placed on a 30-day school-site assistance plan, which was

followed by a 90-day district-level plan. Petitioner asserts that Respondent's performance did not improve sufficiently to warrant a satisfactory evaluation, and that his failure to remediate his deficient performance constitutes cause to terminate his employment.

In addition to challenging whether his performance was satisfactory, Respondent asserts that the procedure used by Petitioner was inadequate because, as a continuing contract teacher, he should have been given a full school year to remediate his deficiencies.

Count II alleged that Respondent engaged in certain specified acts of misconduct in office. That alleged misconduct can be summarized as follows:

1. Giving all but one student in his class Fs on their final exam at the end of the 1996/97 school year;

2. Inappropriate mass punishment in conjunction with the Caldwell Theater trip;

3. Failing to properly maintain adequate records of grades, making errors in reporting grades, and failing to make corrections of grades;

4. Refusing to submit the end of the year checklist prior to summer break at the end of the 1998/99 school year;

5. Falsifying a disciplinary referral regarding communicating with a parent; and

6. Meting out inappropriate, unwarranted and unequal punishment to students, and using grades and denial of make-up work opportunities as methods of punishment.

Count III alleged that Respondent was guilty of gross insubordination or willful neglect of duty. Those allegations may be summarized as follows:

1. Failing to submit his final grade book when he was assigned to a non-teaching position,

2. Failing to develop and submit a discipline plan after repeated instructions to do so,

3. Refusing to attend parent teacher meetings,

4. Refusing to attend CTAS assistance opportunities,

5. Refusing to correct errors he made in individual student grades, and

6. Refusing to submit lesson plans after repeated instructions to do so.

Respondent disputed the factual allegations that underpin Counts II and III and, in addition, argued that the alleged acts of misconduct in office alleged in Count II and the alleged acts of insubordination or willful neglect of duty do not justify the termination of his employment. Respondent further argued that these alleged acts should have been dealt with in the context of the progressive discipline provisions of the collective bargaining agreement.

Respondent timely requested a formal administrative hearing to challenge the allegations of the Administrative Complaint, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, the parties offered five joint exhibits, each of which was admitted into evidence.

Petitioner presented the testimony of the following witnesses: Ariella Jonas (former student), Raven Missick (former student), Terry Braun (parent of former student), Marie Dodd (parent of former student), Joseph Patterson (parent of former student), and Jamie Reyes (parent of former student). In addition, Petitioner presented the testimony of the following school board employees: Diane Harris, Penny Beers, Tcherina Duncombe, Robert Murley, Mayra Stafford, Virginia McGrath, Steve Smith, Barbara Jeanne Burdsall, Diane Curcio-Greaves, and Jay Darr. Petitioner also presented the testimony of Mary Gray (consultant). Mr. Smith’s testimony was presented in the form of a deposition taken January 12, 2001, because he was ill at the time of the final hearing. In addition to the deposition of Mr. Smith, Petitioner offered 132 sequentially numbered exhibits. The following exhibits were rejected for the reason(s) set forth in the record: 3, 16, 23, 64, 122, 123, 127, 128, 129, and 130. All other Petitioner exhibits were admitted into evidence.

Respondent testified on his own behalf and presented the additional testimony of the following teachers or former teachers at BRCHS: Michael Dinkin, Barbara Martin, Stanley Outland, Tarangula Barnes, and Gloria Dixon. In addition,

Respondent presented the testimony of Joseph Matulaitis, an employee of the teacher’s union. Respondent offered two exhibits, both of which were accepted into evidence.

A transcript of the proceedings was filed January 19, 2001.

At their request, the parties were given until April 20, 2001, to file their post-hearing submittals and they were permitted to file proposed recommended orders up to 60 pages in length. Each party has submitted a Proposed Recommended Order, which has been carefully considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The School Board of Palm Beach County, Florida (School Board), is charged with the duty to operate, control, and supervise the public schools within Palm Beach County.

   Section 4(b), Article IX, Florida Constitution. Petitioner has been authorized to act on behalf of the School Board in this proceeding. The respective duties and responsibilities of the School Board and the Superintendent are set forth in

   Chapter 230, Florida Statutes.

   
   

2. Respondent has been employed by the School Board as a classroom English teacher pursuant to a continuing contract since 1965. At all times pertinent to this proceeding Respondent taught high school English at BRCHS. On October 25, 1999, the then-serving Superintendent of Schools reassigned

   Respondent to an administrative position in the Division of Personnel Services, effective October 26, 1999. Respondent has not taught in the Palm Beach School District since his reassignment.

3. The Classroom Teachers Association (CTA) is a union that represents members of the Palm Beach County School District’s instructional staff. Respondent has been a member of the CTA at all times pertinent to this proceeding.

4. Section 231.29(1), Florida Statutes, requires each school district to establish procedures for assessing the performance of duties and responsibilities of certain employees, including classroom teachers with continuing contracts. The Florida Department of Education (DOE) must approve each school district's personnel assessment system. The School Board has adopted a personnel assessment system, described below, that has been approved by DOE. As required by Florida law, School District administrators evaluate the work performance of teachers at least once a year. The Classroom Teachers Assessment System (CTAS), the assessment system used by the Palm Beach County School District, requires that prior to any evaluation, a qualified administrator observe the teacher’s classroom performance for a minimum of twenty minutes, recording any noted strengths and identifying weaknesses that should be remediated. An observation may be recorded in a narrative form

   or in a summative form. Following the observation, the administrator completes the evaluation form, which requires that the teacher be rated in 16 skill areas. The rating for each skill area is a score of two for an acceptable area or a one for an area of concern (an area of deficiency).

5. At the beginning of every school year, teachers receive a Teacher Evaluation Handbook (Handbook) that describes the evaluation form, criteria, and rating scale that Petitioner uses to evaluate the job performance of employees with continuing contracts or professional services contracts. The evaluation form lists a total of 16 skill areas under the following headings: "Instructional Process," "Professional Proficiencies," and "Professional Responsibilities" as follows:

   1. INSTRUCTIONAL PROCESS

      1. Management of Student Conduct

      2. Instructional Organization and Development

      3. Presentation of Subject Matter

      4. Communication: Verbal and Nonverbal

         
         

   2. PROFESSIONAL PROFICIENCIES

      1. Establishes an Appropriate Classroom Climate

      2. Demonstrates Knowledge of Subject Matter

      3. Demonstrates Ability to Plan Effectively

      4. Demonstrates Ability to Evaluate Instructional Needs

      5. Demonstrates Effective Written Communication Skills

      6. Develops and Maintains an Accurate Record Keeping System

   3. PROFESSIONAL RESPONSIBILITIES

1. Demonstrates a Commitment to Growth

2. Demonstrates Self Control

3. Demonstrates Effective Working Relationship with Coworkers

4. Demonstrates Effective Working Relationship with Parents

5. Adheres to and Enforces School Policies

6. Performs Duties as Assigned by the School Administration

1. The Handbook provides criteria that explain each one of these categories on the evaluation form.

2. Teachers who receive an unsatisfactory performance evaluation are placed on a 30-day school-site assistance plan. If the teacher’s performance has not sufficiently improved by the end of the 30 days, the teacher is thereafter placed on a 90-day district-level assistance plan. Prior to the end of the 90-day period, the teacher’s performance in the classroom is evaluated again. If that teaching performance is still rated unsatisfactory, the teacher can be recommended for dismissal.

   This process applies to both Professional Service Contract (PSC) teachers and Continuing Contract (CC) teachers. The CTAS has been incorporated by reference into the collective bargaining agreement (CBA) between the School District and the CTA. 1/

3. Article II, Section M of the CBA is titled Discipline of Employees (Progressive Discipline) and provides, in pertinent part, as follows:

   1. Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.

      * * *

      
      

      7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations, progressive discipline shall be administered as follows:

      1. Verbal Reprimand With A Written Notation. . . .

      2. Written Reprimand. . . .

      3. Suspension Without Pay. . . .

      4. Dismissal. . . .

      
      

4. Diane Harris became the principal of BRCHS in August 1997, taking over for Norman Shearin. Prior to her appointment, Ms. Harris served as an administrator in the Area Office and was assigned to the instructional support team.

5. Pursuant to her duties under the CTAS, Ms. Harris observed one of Respondent’s classes on October 23, 1997. She observed what she considered to be several areas of deficient performance. Ms. Harris subsequently met with Respondent to address these concerns and make suggestions on how he could improve his teaching performance. Respondent was not receptive to her comments.

6. Respondent’s final evaluation for the 1997-98 school year was rated satisfactory overall. Ms. Harris testified, credibly, that she rated all the teachers that year as being satisfactory because she wanted to observe all teachers during her first year as principal so she could formulate a plan for the following year. The concerns noted during her October observation of the Respondent were never made a part of his final evaluation for 1997-98. Ms. Harris rated Respondent's performance as being satisfactory despite the fact that she was aware that Respondent’s review for the prior year (under

   Dr. Shearin) had been unsatisfactory.

   
   

7. Every year, the BRCHS English Department takes students on a field trip to the Caldwell Theater to view a theatrical production. On November 4, 1998, Respondent’s first period English class was scheduled to go on that field trip. That morning, however, several of his students appeared at the school’s front office and complained to Ms. Harris that Respondent would not allow the entire class to go on the field trip because some students had thrown “spit wads” during class. Rather than punish the students who were responsible, Respondent inappropriately punished the whole class.

8. Because half of the English Department was going on the field trip that day and half the next day (November 5, 1998), Ms. Harris arranged for Respondent’s students to go on

   the field trip on November 5, 1998. She was unable to meet with Respondent on November 4, 1998 because, when she went to look for him to inquire about his actions, he had already left on the bus with other students to go to the theater. When Ms. Harris was finally able to speak to Respondent either that day or the following day, Respondent accused her of preempting his absolute authority over his class.

9. On November 6, 1998, Ms. Harris issued a memorandum to Respondent outlining her concerns about the field trip incident. In that memorandum, Ms. Harris also noted that she was concerned about the frequent number of disciplinary referrals for assistance from the deans Respondent would make on a daily basis. As a result of those concerns, Ms. Harris provided Respondent with a handout from the CTAS listing the performance criteria for Management of Student Conduct, which included implementing a discipline plan. Ms. Harris specifically directed Respondent to prepare such a written discipline plan and provide it to her by November 9, 1998.

10. On November 17, 1998, Respondent provided to

    
    

    Ms. Harris a copy of a one-page typed document outlining eight rules of conduct which he handed out at the beginning of each school year to his students. On the copy provided to

    Ms. Harris, the Respondent noted that he also followed the student/teacher handbook. Attached to the document was a copy

    of a page from an outdated student/teacher handbook. On several occasions Ms. Harris informed Respondent that his discipline plan was inadequate. Thereafter, Ms. Harris consulted with

    Ms. Stafford, an assistant principal of BRCHS, and obtained a number of documents from the School District’s Professional Standards Office to aid Respondent in properly preparing a discipline plan. By memorandum dated December 18, 1998,

    Ms. Harris directed Respondent to provide her with a discipline plan by January 8, 1999.

11. When a student is removed from a classroom as the result of misbehavior, he or she is sent to a supervised study area called the opportunity room. On November 24, 1998,

    Ms. Harris met with Respondent regarding the large volume of referrals he was issuing, which resulted in the students being referred to the opportunity room. At mid-year, Respondent had issued approximately 70 to 75 such referrals. By the end of the school year, Respondent had issued 146 such referrals. In addition to the number of referrals, Ms. Harris received complaints from parents that two particular students were being regularly referred to the opportunity room, that these two students received failing grades, that they were not given progress reports, and that their work was misplaced. Ms. Harris also received a complaint from a student that Respondent had

    sent the student to the opportunity room without giving the student a way to make up class work.

12. Respondent requested another meeting and offered to justify the referrals he had made, but the meeting was never held. 2/

13. On December 4, 1998, Ms. Harris made an informal observation of Respondent’s first period class. Ms. Harris observed that the classroom setting was chaotic, students ignored Respondent, and there was no flow or continuity of instruction.

14. All teachers are required to turn in weekly lesson plans reflecting objectives, materials, assessment tools, and activities. In January 1999, Respondent turned in lesson plans for the second term of English 10 and 11. His plans for English 11 were merely a duplicate of his plans for English 10. Subsequently, Ms. Harris repeatedly instructed Respondent to turn in appropriate lesson plans for English 11. Despite those clear instructions from Ms. Harris, Respondent did not turn in appropriate lesson plans for English 11.

15. Ms. Harris decided to give Respondent a mid-year evaluation. The evidence presented by Petitioner established that Ms. Harris was justified in determining that a mid-year evaluation was appropriate. 3/

16. Ms. Harris assigned Dr. Robert Murley, an assistant principal at BRCHS, to perform a summative observation of Respondent on February 2, 1999. On the day Dr. Murley observed Respondent, Respondent was approximately five minutes late to class. At one point during the observation, Dr. Murley observed that more than half the class was not engaged in learning. The students were either talking or sleeping, or staring off into space, or looking out the window. Dr. Murley further observed Respondent talking above the class rather than getting them to pay attention. Dr. Murley observed the class for over an hour in the hope that things would get better, but they did not. During the 75 minutes that Dr. Murley observed Respondent’s class, he noted 42 times where the students were engaged in misconduct, with Respondent failing to address the misconduct in

    12 instances. Respondent’s lessons failed to include meaningful learning and motivational techniques. Overall, Dr. Murley felt that there was very little learning going on and that Respondent was having a lot of difficulty keeping the class aware of what he was trying to teach them and trying to keep them engaged.

17. On February 5, 1999, Dr. Murley met and reviewed his observations with Respondent. Respondent listened to some of the suggestions but not all of them. Respondent did not contest any of Dr. Murley’s observations on the summative form at that time. Subsequently, Dr. Murley attended a meeting with

    Respondent, his union representative, Ms. Harris, and Ms. Stafford. At that subsequent conference, Respondent resisted all suggestions and criticized Dr. Murley’s observations.

18. As a result of Dr. Murley’s observation and Ms. Harris’ other concerns, Ms. Harris gave Respondent an unsatisfactory rating on the mid-year evaluation. On

    February 22, 1999, Ms. Harris met with Respondent and gave him the evaluation; Respondent signed the evaluation under protest. Respondent accused Ms. Harris and Ms. Stafford of “obsessive misanthropy.” This can only be construed as an attack on their professionalism and an accusation that they were biased against male professionals.

19. On March 3, 1999, another conference was held, at which time Respondent presented his written rebuttal 4/ disputing each of Ms. Harris’ concerns from the February 22nd meeting. Respondent was not receptive to any suggestions, and the meeting itself was adversarial.

20. By memorandum dated March 8, 1999, Ms. Harris notified Respondent that he was being placed on a 30-day school-site assistance plan, and that failure to improve his performance could result in further action. A copy of the written assistance plan was provided to Respondent at that time. Respondent was also provided with copies of letters and reports

    from students in Respondent’s classes regarding the climate in the classroom and Respondent’s evaluation of students.

21. On March 10, 1999, Ms. Harris met with Respondent, together with Dr. Jeanne Burdsall, Director of Professional Standards, and Diane Curcio-Greaves, a specialist from the Professional Standards Department, regarding the school-site assistance plan. Dr. Burdsall and Ms. Curcio-Greaves developed a checklist for the 30-day plan. As part of the plan, Respondent was to observe another teacher’s class, turn in a discipline plan by March 22, 1999, and work with a Peer Assistance and Review (“PAR”) Consulting Teacher. Respondent and his union representative consented to his referral for PAR assistance. Follow-up meetings to review progress under the plan were scheduled for approximately every ten days. On or about March 15, 1999, Respondent provided a written response to Ms. Harris, contesting the charges against him.

22. On March 17, 1999, Ms. Curcio-Greaves arranged for Respondent to observe a class at Atlantic High School. During that observation, Ms. Curcio-Greaves pointed out to Respondent certain teaching behaviors that she considered effective. Two areas were focused upon: management of student conduct and instructional organization and development. Respondent could have benefited from observing that class, but he resisted the

    efforts of Ms. Curcio-Greaves to help him improve his performance.

23. On March 16, 1999, as part of the on-site school assistance plan, Virginia McGrath, a member of the Area Office’s Instructional Support Team and a certified CTAS evaluator, observed one of Respondent’s classes for approximately one hour and noted several areas for improvement. Specifically, she observed that Respondent did not review the assignment with the class, and that the students did not seem to understand the material being covered. Further, Respondent would not answer the questions of students who were unclear about the materials and/or the assignment and allowed too much down time.

    Ms. McGrath did not observe any actual teaching by Respondent during this observation.

24. On March 18, 1999, Ms. Harris conducted a school-wide training session regarding the new CTAS evaluation system, which had been negotiated by the School District and the CTA and approved by DOE. Respondent attended the training.

25. On March 19, 1999, pursuant to the terms of the on- site school assistance program, Ms. Harris again met with

    Ms. Curcio-Greaves and Respondent to review his progress under the on-site plan. During the meeting, Respondent complained that he should not be involved in the observation process, and he was not receptive to Ms. Curcio-Greaves’ observations.

    Instead, Respondent was critical of the teachers he observed and opined that Atlantic High School was a bad school overall.

    Pursuant to Respondent’s request at that meeting, Ms. Harris scheduled a follow-up meeting for March 23, 1999, to further discuss Respondent’s evaluation.

26. On April 9, 1999, a follow-up meeting was held to review Respondent’s progress under the school assistance program. By this time, Respondent had still not provided the required classroom management plan; rather, he had only turned in a copy of the rule book. At the meeting, Respondent was informed of a professional standards workshop on presentation of subject matter and planning, to take place on April 27, 1999.

    As part of the school assistance plan, Respondent attended that workshop. Also pursuant to the school assistance plan, the PAR panel granted, on April 15, 1999, Respondent’s request for inclusion in the program, and assigned a PAR Consulting Teacher.

27. On April 15, 1999, Dr. Burdsall attended an evaluation meeting with Respondent, Ms. Harris, and Mr. Matulaitis. During the meeting, Respondent stated that the principal was unprofessional, and commented that one particular student and that student’s father were “not too bright.” Respondent also stated (referring to Dr. Burdsall and Ms. Harris) that, “The ladies are unable to handle this, you live in a fluffy world,” and responded to a question by Dr. Burdsall with “no, my love,

    no.” Respondent was insulting to Ms. Harris and Dr. Burdsall and resisted the remedial assistance being provided to him.

28. On April 16, 1999, pursuant to the CTA CBA, Ms. Harris notified Respondent that she would be observing his class during the week of April 19-23, 1999. Subsequently, Ms. Harris conducted the observation of Respondent’s classroom on April 22, 1999, and prepared a narrative report of her observations.

    Based upon her observations, Ms. Harris concluded that Respondent still did not have adequate control of his classroom environment and was exhibiting the same deficiencies as she had noted in the February 1999 evaluation. By memorandum dated April 26, 1999, Ms. Harris informed Respondent of her observations and, on April 30, 1999, personally met with him to discuss the matter further. Respondent did not agree with the assessment. Ms. Harris provided to Respondent a follow-up memorandum on May 5, 1999.

29. By memorandum dated April 23, 1999, Mr. Matulaitis requested that the completion date for the school-site assistance plan be extended, as some items had not yet been completed. Upon review of the matter, Ms. Harris noted that most items had been completed without any noticeable improvement by Respondent. Specifically, Ms. Harris had still not received the discipline plan she had requested back in November, nor had Respondent provided to her revised lesson plans. Further, none

    of the observations of his classes showed any change in strategies in the classroom. In addition, Respondent became more adversarial and abusive at each follow-up meeting and consistently resisted suggestions. Ms. Harris denied

    Mr. Matulaitis’ request to extend the completion date for the school-site assistance plan.

30. Dr. Mary Gray, a professor at Florida Atlantic University, is an expert in teacher evaluation who works with the school district as a consultant in teacher evaluation cases. Dr. Gray met Respondent on April 27, 1999, when he attended a workshop she conducted on planning for instruction and presentation of subject matter (including classroom management and questioning techniques) as part of his remediation program. Dr. Gray testified that Respondent appeared resistant to participating in the workshop.

31. On May 4, 1999, Ms. Harris notified Respondent that she would provide transportation for him to go to another school and observe another teacher’s classroom as part of his remediation plan. Ms. Harris further informed Respondent that she would provide a substitute teacher for his classes that day. On that same date, Respondent signed the notification under protest and asked for the trip to be rescheduled. On May 5th and 6th, however, Respondent was absent from work. On May 6, 1999, Ms. Harris notified Respondent that his May 5, 1999,

    meeting to observe an ESOL (English for Speakers of Other Languages) teacher had been rescheduled for May 10, 1999, due to Respondent’s absence on May 5th. This was one of the last open items remaining on Respondent’s school-site assistance plan.

32. By letter dated May 6, 1999, Ms. Harris requested then Superintendent of Schools, Dr. Joan P. Kowal, to place Respondent on a 90-day performance probation, because Respondent had completed the school-site assistance plan without making any improvement in the noted areas of deficiency.

33. On May 11, 1999, Respondent received his year-end CTAS evaluation. The evaluation noted the same deficiencies as had been noted on the February evaluation. The evaluation rated Respondent as unsatisfactory overall, and noted that a 90-day district-level assistance plan would be implemented. By letter dated May 12, 1999, Superintendent Kowal formally advised Respondent that he had been placed on 90-day performance probation and that he would receive a Professional Development Plan (the district plan) to support remediation of the deficiencies.

34. Also on May 13, 1999, Ms. Harris provided to Respondent copies of letters from students and one parent regarding the climate in Respondent’s classroom and Respondent’s failure to appropriately evaluate student needs. Ms. Harris testified that the student concerns were addressed in the form

    of a petition, and that she had never received such a document for any other teacher at BRCHS. Ms. Harris referred Respondent to specific sections in the school-site assistance plan for suggestions on improvement strategies in the noted areas of concern.

35. On that same day, Ms. Harris also requested that Superintendent Kowal revise the district plan to delete the seventh area of concern (working relationships with parents) as a result of the disposition of a grievance Respondent had filed about his evaluation. Ms. Harris had been told by her supervisor that it would be more beneficial for Respondent to concentrate on the other six areas, which more directly affected Respondent’s instructional activities. Respondent’s May 1999 evaluation was also changed accordingly.

36. On May 14, 1999, the ESOL teacher assigned to meet with Respondent pursuant to the school-site assistance plan reported to Ms. Harris that Respondent had been resistant to the ESOL teacher’s suggestions as to the use of ESOL strategies.

37. At a meeting on May 19, 1999, Respondent was officially placed on a 90-day district plan and notified of his right to a deficiency hearing -- which he requested. At that meeting, a checklist for the district plan was developed. Everyone agreed to the plan and agreed that it complied with the CTA CBA. Neither Respondent nor the CTA objected to the fact

    that Respondent had been placed on the 30-day and 90-day programs.

38. The deficiency hearing to review the 90-day district plan was conducted with Cheryl Alligood serving as the hearing officer. The hearing was held before Ms. Alligood, the principal, the union representative, and the teacher. The purpose of a deficiency hearing is for the union representative to come with the teacher and the principal to review what concerns there may have been and whether sufficient assistance is being provided to the teacher by the district plan. Respondent, who was represented by counsel at the deficiency hearing, asserted that his performance was not deficient and that Ms. Harris was “out to get him.” Subsequently,

    Ms. Alligood found sufficient reason to continue Respondent on the district plan. Respondent received notice of that determination on July 6, 1999.

39. Pursuant to Respondent’s agreement, Dr. Burdsall arranged for Respondent to observe a Dwyer Award recipient or nominee. A Dwyer Award is given for excellence in teaching. Respondent did not keep his appointment that had been set up by Dr. Burdsall. The observation was rescheduled, but again, the Respondent did not show up. Respondent also failed to attend a workshop set up by the PAR teachers specifically for the purpose of helping him remediate his particular teaching deficiencies.

    Dr. Burdsall offered Respondent the opportunity to attend a different workshop. Again, he did not attend. During the 1998-

    99 school year, several remedial workshops were recommended to Respondent to assist in his professional development that he did not take advantage of.

40. On May 27, 1999 (about a week before the end of the school year), Dr. Gray observed Respondent’s teaching performance in the classroom, at which time she noted he was deficient in several areas. The most critical deficiency Dr. Gray noted was that Respondent was not performing at the minimal teaching level. Based on her observations, Dr. Gray did not consider Respondent to be a competent teacher. Following the observation, Dr. Gray met with Respondent to review the results of her observation and to offer constructive criticism. Respondent was defensive and clearly resented being involved in the observation/remediation process. Respondent angrily voiced that resentment to Dr. Gray. Respondent subsequently provided Ms. Harris with a written response to Dr. Gray’s observations, disagreeing with each one.

41. Respondent’s district plan extended through the summer. Dr. Burdsall met with Respondent following the summer break and determined that Respondent had not done anything over the summer to try to help his remediation process. At the August 13, 1999, meeting, Dr. Burdsall, Ms. Harris, and

    Mr. Matulaitis agreed it would be beneficial for Respondent to attend a couple of workshops on management of student conduct and instructional strategies. In addition, it was decided that the PAR teacher would continue for the 1999-2000 school year.

    Dr. Burdsall testified that the meeting was unlike any other assistance review meetings she has had because of the adversarial, abusive attitudes of Respondent and his union representative. Dr. Burdsall was under the impression that Respondent was never going to remediate.

42. On August 26, 1999, pursuant to the 90-day district plan, Tcherina Duncombe, a specialist in the Professional Standards Office, conducted an hour-long observation of Respondent’s classroom and prepared a narrative report of her observations. Ms. Duncombe determined that Respondent needed improvement in the same areas that had been of concern during the prior school year, including management of student conduct, instructional organization and development, and establishing an appropriate classroom climate. Ms. Duncombe observed that Respondent’s instruction that day was not organized and was ineffectual, and that his directions were unclear. Further, Respondent failed to discipline some students for talking in class and making inappropriate comments, but then would discipline others in an inappropriate manner.

43. Ms. Duncombe subsequently discussed her findings and suggested improvement strategies with Respondent, but he did not appear to be receptive. During the one-hour review session

    Ms. Duncombe had with Respondent, Respondent spent most of the time making negative comments about the district plan and

    Ms. Harris. Based upon the information contained in the narrative, Ms. Harris determined that Respondent had not made any improvement in his classroom teaching performance. On September 9, 1999, Respondent provided a written response to Ms. Duncombe’s observations, taking issue with each point made by Ms. Duncombe.

44. On September 18, 1999, Respondent was notified via certified mail that a second observation would take place during the week of September 21, 1999, by Ms. McGrath, as part of the district plan. At the same time, Respondent was informed that a previously scheduled meeting had been reset to September 21, 1999. Ms. McGrath conducted her second observation of Respondent on September 22, 1999. Again, Ms. McGrath did not observe any actual teaching, and Respondent again failed to review materials with the students and clarify any confusing assignments. Ms. McGrath also observed students talking in class (including the utterance of a couple obscenities) and passing notes. In addition, Respondent was inconsistent with requests for bathroom leaves. Further, Respondent had not

    implemented any of Ms. McGrath’s recommendations from the previous observation (there was no defined lesson and Respondent was not meeting the needs of all his students). After the second observation, Ms. McGrath was concerned about Respondent’s competency as a teacher. Based upon the information contained in Ms. McGrath’s summary of her observation, Ms. Harris determined that Respondent still had not made any improvement in his classroom teaching performance.

45. Dr. Burdsall was present during a September 21, 1999, district plan meeting wherein the evaluations of Ms. Duncombe and Dr. Gray were reviewed. Respondent insulted Dr. Burdsall again. Dr. Burdsall testified that she had never had a teacher become abusive when she was trying to provide assistance. Rather than walk out of the meeting, Dr. Burdsall continued to try and provide assistance to Respondent. Despite Respondent’s attitude, Dr. Burdsall continued to make efforts to assist Respondent and get him to see other teachers.

46. On October 4, 1999, Ms. Harris received a letter from a student concerning Respondent’s teaching methods. Ms. Harris testified that the complaints in the letter were consistent with the same pattern of deficiencies exhibited by Respondent on other occasions. Ms. Harris provided copies of the letter to Respondent and, on October 7, 1999, scheduled a brief meeting with him to discuss the letter. The meeting was held on

    October 8, 1999. At the meeting, Respondent was also given a copy of an observation summary conducted by Dr. Penny Beers, the curriculum specialist for the School Board's language arts program, discussed infra. Further, Ms. Harris notified Respondent that she would be observing his classroom the week of October 11, 1999.

47. On October 5, 1999, Respondent, through his counsel, filed a Petition for Writ of Prohibition in the Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. In that action, Respondent sought the issuance of a writ of prohibition directing the School Board to cease the 90-day district-level remediation program and restraining the School Board from treating Respondent as a PSC teacher. Respondent argued that, as a CC teacher under Section 231.36, Florida Statutes, he could only be dismissed for immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Respondent further argued that the 90-day district plan could not be applied to CC teachers. By order dated November 1, 1999, following oral argument on the issue, the Circuit Court denied Respondent’s Petition.

48. On October 6, 1999, Dr. Beers conducted an observation of Respondent’s classroom as part of the district plan.

    Although Dr. Beers made several commendations in her observation

    summary, she made even more recommendations for improvement. Based upon her one-hour observation, Dr. Beers felt that Respondent had not demonstrated his competence as a teacher because she saw very little instructional time used during that one-hour period. Specifically, Respondent engaged the students in actual instruction for only ten minutes of the one-hour period. She also noted that Respondent was inconsistent in his meting out of discipline and was not very aware of what the students were doing (which was referred to as lacking “with-it- ness”). Dr. Beers wrote up a summary of her observation in narrative form, and included commendations as well as recommendations for improvement. From those recommendations, Ms. Harris determined that Respondent had still not made any progress toward remediating his teaching deficiencies.

49. Ms. Harris observed Respondent’s class on October 12, 1999, and prepared a narrative summary. Respondent’s classroom performance at that time was consistent with previous observations. Ms. Harris did not note any improvement.

50. On October 15, 1999, Ms. Harris prepared an evaluation for Respondent, rating his performance as being unsatisfactory. The unsatisfactory evaluation was based on Respondent’s failure to remediate any of the previously noted six areas of concern and his lack of effort in that regard. Ms. Harris also notified Superintendent Kowal that, although Respondent was provided

    90 days of assistance, his performance deficiencies had not been corrected to a sufficient degree to warrant a satisfactory evaluation. Dr. Kowal in turn notified Respondent that she would recommend to the School Board Respondent’s dismissal effective 15 days from the November 4, 1999, School Board meeting.

51. At the end of the 1996-97 school year, Respondent erroneously recorded that all but one student in a class had failed the final examination. The incorrect grades appeared on the final report cards for the 1996-97 school year. On September 17, 1997, a pre-disciplinary hearing was held to determine whether further action should be taken. At that pre- disciplinary hearing, it was established that the failing grades were the result of Respondent's record-keeping errors and that no further action would be taken against him after Respondent changed the erroneous grades.

52. Respondent repeatedly failed to maintain adequate records of grades, made errors in reporting grades, and misplaced students' work.

53. Count II alleged that Respondent refused to submit the end-of-year checklist prior to summer break for the 1998/99 school year. The evidence failed to establish that allegation.

54. Count II also alleged that Respondent falsified a disciplinary referral by indicating on the referral record that

    he had spoken to the student's parent when, in fact, he had not done so. Respondent admitted that he had not spoken directly with the parent, but he testified, credibly, that he had left a message on the parent's answering machine and did not intend to mislead anyone by the referral record.

55. Count II alleged that Respondent meted out inappropriate, unwarranted, and unequal punishment to students, and that he used grades and denial of make-up work opportunities as methods of punishment. Respondent meted out inappropriate, unwarranted, and unequal punishment to students. Petitioner did not establish that Respondent used grades and denial of make-up work opportunities as methods of punishment.

56. As alleged in Count III, Petitioner established that Respondent was guilty of insubordination by his continuing failure to provide Ms. Harris with lesson plans and with a discipline plan. In explaining to the arbitrator who heard one of his grievances, Respondent testified that he did not do a discipline because he did not do "diddly" tasks. The remaining allegations of insubordination or willful neglect of duty set forth in Count III were not established by Petitioner.

57. Petitioner established that each observation of Respondent's performance at issue in this proceeding was pursuant to and consistent with its established evaluation process. Each person who formally observed Respondent's

    classroom performance was appropriately trained and objectively reported their observations, which were factually based.

58. Petitioner further established that each performance evaluation at issue in this proceeding was pursuant to and consistent with its established evaluation process. The various findings of unsatisfactory performance were justified by documented observations as required by the evaluation process.

59. The 90-day district plan provided Respondent with appropriate assistance to help him correct his teaching deficiencies. Petitioner clearly established that Respondent repeatedly resisted efforts to help him.

60. Respondent failed to remediate his deficiencies. This failure should be attributed more to a negative attitude than a lack of ability.

61. At the March 29, 2000, School Board meeting, the Superintendent of Schools submitted a written recommendation that Respondent be dismissed from his CC teaching position with the School District at the end of the 1999-2000 school year, effective May 31, 2000. Respondent and his attorney were given an opportunity to be heard regarding the Superintendent’s recommendation. The School Board voted in favor of the Superintendent's recommendation.

    CONCLUSIONS OF LAW

    
    

62. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes (1999).

63. In the absence of contract language to the contrary, Petitioner would have the burden of proving by a preponderance of the evidence the allegations contained in the Administrative Complaint. See Section 120.57(1)(j), Florida Statutes; and Dileo v. School Bd. of Dade County, 569 So. 2d 883 (Fla. 3d DCA

    1990). Article II, Section M of the CBA imposes on Petitioner the burden of substantiating that it has just cause to terminate Respondent's employment by clear and convincing evidence.

    Petitioner has met that burden in this proceeding as to Count I of the Administrative Complaint.

64. Petitioner established that it closely adhered to its evaluation process and procedures in observing and evaluating Respondent and in developing plans of assistance. Petitioner established that Respondent failed to remediate the identified areas of concern despite appropriate offers of assistance. The continued deficient performance, together with the lack of any meaningful progress towards correcting the identified deficiencies despite appropriate offers of assistance, compel the conclusion that Petitioner has good and sufficient cause to

    terminate Respondent's employment pursuant to Section 231.36(4)(b), Florida Statutes.

65. Count II contains certain allegations of misconduct which, as reflected by the findings of fact, were established by Petitioner. Count II contains other allegations of misconduct that were not established by Petitioner.

66. As alleged in Count III, Petitioner established that Respondent was guilty of insubordination by his continuing failure to provide Ms. Harris with lesson plans and with a discipline plan.

67. Respondent correctly argues that Counts II and III should not be used as independent grounds to terminate Respondent's employment. The misconduct alleged in Count II and established at the final hearing and the insubordination alleged in Count III and established at the final hearing should have been dealt with by the progressive discipline provisions of Article II, Section M, of the CBA. Paragraph 7 of that provision provides that progressive discipline should be used "[e]xcept in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations. . . ." The misconduct alleged in Count II and established at the final hearing, and the insubordination alleged in Count III and

established at the final hearing, should have been dealt with by the progressive discipline provisions of Article II, Section M, of the CBA. Paragraph 7 of that provision provides that progressive discipline should be used "[e]xcept in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school board rules and regulations. . . ." The misconduct and the insubordination established at the final hearing do not rise to a level of wrongdoing that would qualify for the exception to progressive discipline set forth in Article II, Section M, Paragraph 7 of the CBA.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further RECOMMENDED that the final order terminate Respondent’s continuing contract of employment effective at the end of the 1999-2000 school year.

DONE AND ENTERED this 18th day of May, 2001, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 18th day of May, 2001.

ENDNOTES

1/ Section 231.29(3)(d)1, Florida Statutes, provides that in the event an employee's performance is found to be deficient, ". . . 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." Section 231.29, Florida Statutes, does not specify a minimum or a maximum amount of time within which a continuing contract teacher can correct his or her identified deficiencies. Section 231/29(3)(d)2a, Florida Statutes, requires if the employee holds a professional services contract, the district remediation plan must be for 90 calendar days, excluding school holidays and school vacation days. The School Board and the teacher's union agreed as the result of collective bargaining that all classroom teachers would be entitled to a district plan of 90 calendar days. Respondent's argument, based on the provisions of Section 231.36(4)(a), Florida Statutes, that he was entitled to a full year to remediate his deficiencies as provided in a previous version of the collective bargaining agreement is rejected. A performance evaluation process, negotiated as the result of collective bargaining and approved by DOE, is not within the scope of the statute upon which Respondent relies. Section 231.36(4)(a), Florida Statutes, provides as follows:

(4)(a) An employee who has a 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.

2/ Respondent disputed the method by which Petitioner counted the number of referrals because one actual referral may have been counted multiple times. While the exact number of referrals may be in doubt, the fact that Respondent made excessive disciplinary referrals is not. Petitioner's evidence that Respondent made excessive referrals is consistent with its evidence that Respondent did not have an appropriate discipline plan and consequently, did not maintain appropriate control over his classroom. However, making an excessive number of referrals is not viewed by the undersigned as establishing an independent case of misconduct in office in the absence of proof that the underlying referrals were inappropriate, unwarranted, unequal punishment, retaliatory, or a violation of school board rules.

3/ Ms. Harris had several reasons to conduct the mid-year evaluation. Respondent had an excessive number of students making either an F or a D in his classes. She had received numerous letters of complaint from students and parents about Respondent’s classroom performance and his grading and discipline practices. In addition, Ms. Harris had informally observed the chaotic atmosphere in Respondent’s classroom. The mid-year evaluation was subsequently vindicated after Respondent filed a grievance pursuant to the CBA between the School Board and the teacher's union. Following an arbitration hearing on the grievance, a final arbitration award was entered in favor of the School Board as to the procedure followed in conducting the mid-year evaluation.

4/ The CBA gave Respondent the right to rebut criticism of his performance made by observers or evaluators. Respondent made a practice of filing a written response in an effort to rebut anyone who tried to criticize his performance. Respondent's written rebuttals and his testimony at the final hearing have been considered by the undersigned in making the findings of fact reflected in this Recommended Order.

COPIES FURNISHED:

Matthew E. Haynes, Esquire Chamblee, Johnson, Haynes

& Martinelli, P.A. The Barristers Building

1615 Forum Place, Suite 500 West Palm Beach, Florida 33401

Gordon Rogers, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A.

200 South Biscayne, Suite 3600 Miami, Florida 33131

Art Johnson, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard, C-316 West Palm Beach, Florida 33406-5869

Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08

Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 00-001625

Orders for Case No: 00-001625