STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. )

)

MICAH D. HARRELL, )

)

Respondent. )

Case No. 02-1447

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on June 4, 2002, and June 21, 2002, by video teleconference between Miami and Tallahassee, Florida, before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire,

Miami-Dade County School Board

1450 Northeast Second Avenue, Room 400

Miami, Florida 33132

For Respondent: Leslie A. Meek, Esquire

United Teachers of Dade

2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137

STATEMENT OF THE ISSUES

Whether Petitioner has cause to terminate Respondent's professional service contract based on his failure to correct his performance deficiencies during his 90-Day Performance

Probation. Whether Respondent’s performance was properly evaluated.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, Respondent was a classroom teacher assigned to teach at Palmetto Middle School (Palmetto). By letter dated April 3, 2002, Petitioner's Superintendent of Schools notified Respondent that he would recommend to the Miami-Dade County School Board (School Board) that Respondent's employment be terminated and stated the reasons for that proposed action. Respondent filed a request for a formal administrative hearing to challenge the proposed agency action on April 10, 2002. The matter was transmitted to the Division of Administrative Hearings for formal proceedings on April 12, 2002. On April 17, 2002, the School Board voted to terminate Respondent's employment, subject to the outcome of this proceeding.

Petitioner filed its Notice of Specific Charges on April 22, 2002, which alleged that Respondent failed to

satisfactorily correct his performance deficiencies during his 90-Day Performance Probation.

At the hearing, Petitioner presented the testimony of Paul Merker (principal at Palmetto); Randal Cromer (assistant principal at Palmetto); Alfred Meneses (assistant principal at Palmetto); Maria Mayo (teacher at Palmetto), Vivian Taylor

(teacher at Palmetto); Reinaldo Benitez (executive director of the Office of Professional Standards (OPS)); and Dr. Joyce Annunziata (a former assistant superintendent at the OPS). The School Board offered 17 sequentially numbered exhibits

(Exhibit 11 consisted of two parts, Exhibits 11(A) and 11(B)), each of which was admitted into evidence. The parties offered two joint exhibits which were also admitted into evidence.

Respondent testified on his own behalf and he presented the additional testimony of Dr. Thomasina O’Donnell (an administrator in OPS) and recalled Dr. Annunziata. Respondent presented no exhibits other than the two joint exhibits.

During the hearing, Petitioner proffered testimony of

Ms. Mayo and Ms. Taylor concerning the assistance Respondent was given by the Professional Growth Team (PGT). Because that assistance and the sufficiency thereof were not at issue, the undersigned sustained Respondent’s objection to their testimony. Following the Respondent’s case, counsel for Petitioner moved ore tenus to reinstate the proffered testimony. That motion has been denied by separate order.

A transcript of the proceedings was filed on July 15, 2002.

Both parties timely filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was a classroom teacher employed by Petitioner pursuant to a professional service contract.

2. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the school district of Miami-Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes.

3. Petitioner has employed Respondent as a classroom teacher since 1993. He taught at Redland Middle School from

   1993	to	1996.	He taught at South Miami Senior High School from
   1996	to	1999.	During the times pertinent to this proceeding

   
   

   (the school years 1999/2000 and 2000/2001) Respondent taught eighth grade math at Palmetto.

4. Between 1984 and the school year 1999/2000 all teachers employed by Petitioner were evaluated under the Teacher Assessment and Development System (TADS).

5. The United Teachers of Dade (UTD) is the collective bargaining unit representing all classroom teachers employed by Petitioner, including Respondent. In 1997, Chapter 231, Florida Statutes, was amended to provide for a 90-day performance probation period for annual and professional service contract

   teachers who are observed to have unsatisfactory performance. 1/ Petitioner and the UTD collectively bargained a Memorandum of Understanding (MOU) to implement the 90-day performance probation. The new evaluation system is known as PACES, an acronym for the Professional Assessment and Comprehensive Evaluation System. The MOU amended the collective bargaining agreement between the UTD and Petitioner to authorize the replacement of TADS with PACES.

6. During the 1999/2000 school year, the School Board piloted PACES in selected schools. During the 2000/2001 school year, PACES was utilized throughout the school district. Teacher evaluations at Palmetto were performed pursuant to PACES during the 1999/2000 and the 2000/2001 school years. The evaluations at issue in this proceeding were performed pursuant to PACES.

7. PACES has been approved by the Florida Department of Education.

8. PACES observers must be extensively trained to observe and evaluate teaching performance and student learning.

9. School supervisory personnel perform PACES observations and evaluations. The principal and two assistant principals at Palmetto performed the observations and evaluations at issue in this proceeding. Respondent asserted at the final hearing that certain administrators who participated in observing and

   evaluating Respondent were insufficiently trained. That assertion is rejected as being contrary to the greater weight of the evidence. PACES was a major district initiative, and both teachers and administrators received extensive training in PACES. The greater weight of the credible evidence established that the principal and the assistant principals at Palmetto who observed and evaluated Respondent were appropriately trained in observing and evaluating teachers in accordance with PACES procedures. 2/

10. Individual schools across the district, including Palmetto, conducted PACES training for teachers. During the 2000/2001 school year each faculty member at Palmetto had a handbook which contained PACES information, including discussion on each domain, the indicators, the PACES website, and training videos on the website. Several faculty meetings were devoted to discussions of PACES. There were mini-workshops within various departments at Palmetto and all-day workshops for teachers were available in the district. The Palmetto assistant principals divided all six domains between themselves and explained and discussed them with the faculty. A projector was used to show the teachers how to get to the PACES website on the computers. There were 300 computers for teacher use at Palmetto by which Petitioner’s website could be accessed. The faculty meetings at Palmetto were mandatory. If a teacher missed any of the

    meetings, it was the teacher’s responsibility to come to an administrator to find out what was missed. Teachers who missed meetings were given the handouts that had been utilized at the faculty meetings. At the times pertinent to this proceeding, Respondent knew, or should have known, the evaluation criteria of PACES. 3/

11. Prior to the beginning of the 90-day probation under PACES an appropriately trained administrator must observe the teacher's classroom performance and find that performance to be below articulated standards. This observation is officially referred to as the “initial observation not of record.” Unofficially, this observation is referred to as the “freebie.” The freebie observation triggers the probation process, but it is not used to terminate a teacher’s employment.

12. The same administrator who conducted the freebie observation meets with the teacher, goes over the observation, and notifies the teacher that he or she will be observed in approximately one month. The administrator offers a PGT to the teacher, the use of which by the teacher is voluntary at this point. Next is the “first observation of record,” which is unofficially referred to as the "kickoff observation." If this observation is below performance standards, a Conference-for- the-Record (CFR) is held. Next, a Professional Improvement Plan (PIP) is first given to the teacher, and the 90-day Performance

    Probation begins the next day. The Performance Probation lasts

    
    

    90 days, not counting certain specified weekends and school holidays. There must be two official observations within the 90-day period. A PIP is given after any official observation that is below performance standards. If the second official observation is below performance standards, a confirmatory observation takes place after the end of the 90-day period to determine whether the teacher has corrected the deficiencies. The confirmatory observation must be completed within 14 days after the conclusion of the probationary period. The evaluator must thereafter forward to the Superintendent a recommendation whether to terminate the teacher's employment.

13. In PACES, there are six domains. Each domain has components and each component has indicators. It takes only one unacceptable indicator for an observation to be rated below performance standards. If a teacher improves in a particular indicator from one observation to the next, but becomes unacceptable in another indicator, the second observation is rated below performance standards.

14. Mr. Cromer conducted Respondent’s freebie observation on October 24, 2001. The observation did not meet performance standards.

15. Mr. Cromer testified as to his observation of Respondent on October 24, 2001, and stated the reasons

    Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because he was going over 30 homework problems and simply giving out the answers, not making an effort to know whether the students understood. He did not seek input from the students. The students had no opportunity to participate. There was no interaction between Respondent and the students. There was no introduction to the lesson, thereby failing to establish motivation to learn. Respondent did not tell the students what they should learn from the lesson or why it was important that they understand the material. Respondent failed to provide a logical sequence and pace. He was going much too fast for the students. Respondent only demonstrated one math problem, failing to demonstrate any of the others, although there were six different types of problems for review. Respondent failed to utilize higher order cognition, teaching at only one cognitive level. There was no effort to clarify, using different words or examples. The students were not encouraged to make any association or consider examples from their own experience. The students were not asked questions and were not given an opportunity to answer questions. Respondent did not monitor the engagement or involvement of the students in the learning process. He made no effort to gauge whether the students understood the material. He sought no questions from

    the students and gave no feedback. Then Respondent sat down for approximately fifteen to twenty minutes. He did not walk around to monitor what the students were doing. Most of the students were not doing their work. Respondent failed to meet performance standards in components of Domain III, Teacher- Learner Relationships; Domain IV, Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom- based Assessment of Learning.

16. Mr. Cromer met with Respondent on November 1, 2001, and went over each item on the observation and explained why Respondent did not meet performance standards. Mr. Cromer made suggestions for improvement. He advised Respondent that he would be coming back to do a follow-up observation and that Respondent was entitled to have a PGT. At first Respondent declined the PGT, but the next day, he accepted it.

17. PGTs are for first year teachers and for any teacher on a PIP. PGTs are made up of seasoned teachers who are trained in PACES and give support and assistance to other teachers. Usually the administration chooses one member of the PGT and the teacher chooses the other. In this case, Respondent was permitted to choose both teachers. He chose Vivian Taylor and Maria Mayo. Both teachers gave appropriate assistance to Respondent.

18. Under PACES, the same administrator who conducted the freebie observation must conduct the kickoff observation. On November 26, 2001, Mr. Cromer conducted Respondent’s kickoff observation.

19. Mr. Cromer testified as to his observation of Respondent on November 26, 2001, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Cromer’s testimony. Respondent did not meet performance standards because many of the students in his class were excluded from the first twenty minutes while Respondent focused exclusively on two students at the board. One student finished her problem very quickly. The other student was completely confused. Respondent did the problem for him but did not make sure the student understood. The rest of the class was ignored during that time. The students were not given any explanations as to what the two students had done. The remainder of the class talked among themselves, looked around the class, and one student was sleeping. There was no introduction to the lesson and no transition into the second portion of the lesson. The students were not engaged in critical analysis or problem solving. Respondent did not develop any associations between the pie graph he was working on and its relationship to percentages and fractions. Respondent did not provide sufficient “wait time” after questions to

    encourage the students to think about the answers. Instead, the same few students called out answers. Respondent did not meet performance standards in components of Domain III, Teacher/Learner Relationships; Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking.

20. On December 5, 2001, Mr. Merker and Mr. Cromer held a CFR with Respondent and Respondent’s union representative to address Respondent’s substandard performance, his Performance Probation, recommendations to improve the specific areas of his unsatisfactory performance, and Respondent’s future employment status with the School Board. Respondent’s input was sought.

21. Those in attendance at the meeting on December 5, 2001, met again the following day. Respondent’s input was again sought. He was given a copy of the summary of the CFR and a PIP at that time. The PIP required Respondent to read and summarize pertinent sections from the PACES manuals.

22. Respondent’s Performance Probation began on

    
    

    December 7, 2001. The time frame was established with the help of OPS. Respondent was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed timeframe. Respondent's deadline to complete his PIP was January 10, 2002.

23. On January 15, 2002, Mr. Merker conducted an official observation of Respondent in his classroom.

24. Mr. Merker testified as to his observation of Respondent on January 15, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards because the students were not actively engaged in learning. Only six students out of 27 were involved in the lesson. Many of the students did not have the materials and were not able to follow through with the lesson. Respondent did not monitor what the students were doing. Many students were off-task, inattentive, and bored. Respondent did not re-engage the students. Respondent did not re-direct the off-task behavior, which persisted for the entire period. Learning routines were not apparent. Respondent did not give directions for the lesson. Respondent’s explanations were unclear. No adjustments were made. Respondent did not assess the learning progress during the lesson. Respondent solicited only basic knowledge in his questioning. He did not utilize a range of questions to assess student understanding. Respondent did not meet performance standards in components of Domain II, Managing the Learning Environment; Domain IV, Enhancing and Enabling Learning; and Domain VI, Classroom-based Assessments of Learning.

25. Mr. Merker conferred with Respondent on January 24, 2002, made recommendations with respect to the specific areas of

    unsatisfactory performance, and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes. Respondent's deadline to complete his PIP was February 22, 2002.

26. On February 27, 2002, Mr. Meneses conducted the second official formal observation of Respondent in his classroom.

27. Mr. Meneses testified as to his observation of Respondent on February 27, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Meneses’ testimony. Respondent did not meet performance standards because the students were not engaged in learning. After wasting 27 minutes copying numbers from the board, only three to four minutes were left for the main part of the lesson. Respondent wasted a lot of time during the lesson going over non-essential information, and the students were only presented with basic knowledge-level tasks. Inaccurate information was given by Respondent and accepted by the students. Students were not given "wait time" after a question to think about the answers. The learners were not given any introduction to the learning outcomes of the lesson. Respondent did not meet performance standards in components of Domain IV, Enhancing and Enabling Learning; and Domain V, Enabling Thinking.

28. Mr. Meneses and Mr. Merker conferred with Respondent on March 5, 2002, made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP and PGT to help Respondent correct his deficiencies. Respondent’s PIP required him to complete a self- assessment through the PACES website. Respondent's deadline to complete his PIP was March 22, 2002.

29. Respondent’s Performance Probation ended on March 24, 2002.

30. Respondent completed all of the activities required by all of his PIPs. He never indicated that he had any difficulty understanding them.

31. Because Respondent’s second observation within the Performance Probation was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether or not Respondent had corrected his performance deficiencies.

32. On March 26, 2002, Mr. Merker completed Respondent’s confirmatory observation.

33. Mr. Merker testified as to his observation of Respondent on March 26, 2002, and stated the reasons Respondent's performance did not meet standards. The following findings are based on Mr. Merker’s testimony. Respondent did not meet performance standards in components of Domain IV,

    Enhancing and Enabling Learning; Domain V, Enabling Thinking; and Domain VI, Classroom-based Assessments of Learning, because the lesson appeared staged. It was a lesson on fractions that had been presented approximately five weeks earlier. Respondent went full steam ahead regardless of what the students were doing. Respondent had not improved his questioning techniques since Mr. Merker’s prior observation.

34. Mr. Merker notified Respondent on March 26, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and that Mr. Merker was going to recommend to the Superintendent of Schools that Respondent’s employment be terminated. 4/

35. Mr. Merker notified the Superintendent of Schools on March 29, 2002, that Respondent had not satisfactorily corrected his performance deficiencies during his Performance Probation and recommended that Respondent's employment be terminated.

36. On April 3, 2002, the Superintendent of Schools notified Respondent that the Superintendent was going to recommend that the School Board terminate Respondent's employment contract because Respondent had failed to satisfactorily correct his performance deficiencies during his Performance Probation.

37. Petitioner established that it met all procedural requirements and time frames set forth by statute, by PACES, and by the MOU.

38. Under the collective bargaining agreement and under PACES, a teacher is entitled to a fair, equitable, and impartial evaluation. Respondent’s evaluations were fair, equitable, and impartial.

39. On April 17, 2002, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract subject to his due process rights.

    CONCLUSIONS OF LAW

    
    

40. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

41. Petitioner has the burden of proving the allegations against Respondent as set forth in the Notice of Specific Charges by a preponderance of the evidence. Allen v. Sch. Bd. of Dade Co., 571 So. 2d 568 (Fla. 3d DCA 1990).

42. Petitioner established that Respondent demonstrated teaching deficiencies, which he failed to correct within the Performance Probation provided by Section 231.29(3)(d), Florida Statutes. Consequently, Petitioner has grounds to terminate Respondent’s professional service contract.

    RECOMMENDATION

    
    

    Based on the foregoing, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the termination of Respondent's professional service contract, effective April 17, 2002.

    DONE AND ENTERED this 10th day of September, 2002, 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 10th day of September, 2002.

    
    

    ENDNOTES

    
    

    1/ Section 231.29, Florida Statutes, provides, in part, as follows:

    1. For the purpose of improving the quality of instructional, administrative, and supervisory services in the public schools of the state, the superintendent of schools shall establish procedures for assessing the performance of duties and responsibilities of all instructional, administrative, and supervisory personnel employed by the school district. The Department of Education must approve each district's instructional personnel assessment system.

* * *

(2)(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 of schools.

2/ Respondent argued that certain of Mr. Merker’s responses to procedural questions pertaining to PACES and the fact that he misstated the PACES acronym established that he was insufficiently trained. Mr. Merker did make mistakes while testifying, but those were harmless errors that do not establish that he was insufficiently trained. Respondent also argued that Dr. Benetiz's inability to answer certain questions as to PACES demonstrates that there has been insufficient training as to PACES. That argument is likewise rejected because Dr. Benetiz did not participate in Respondent’s observations and evaluations.

3/ Respondent argued at the final hearing that he was not properly trained at to PACES. That contention is rejected as being contrary to the greater weight of the evidence. There was extensive testimony as to the mandatory training for teachers at Palmetto. There was no evidence that prior to the final hearing Respondent had complained to anyone that he had missed any of the PACES training, that he did not have a faculty handbook, or that he was uncomfortable with the PACES evaluation criteria.

4/ Respondent believes that Mr. Merker reached his decision to recommend his termination before his confirmatory observation. Respondent failed to establish this theory by competent evidence.

COPIES FURNISHED:

Madelyn P. Schere, Esquire Miami-Dade County School Board

1450 Northeast Second Avenue, Room 400

Miami, Florida 33132

Merrett R. Stierheim, Superintendent Miami-Dade County School Board

1450 Northeast Second Avenue, Room 912

Miami, Florida 33132

Leslie A. Meek, Esquire United Teachers of Dade

2200 Biscayne Boulevard, Fifth Floor Miami, Florida 33137

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

Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street 1244 Turlington Building

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: 02-001447

Orders for Case No: 02-001447