STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
ROXIE POWELL,
Respondent.
/
Case No. 13-3369PL
RECOMMENDED ORDER
Administrative Law Judge Lisa Shearer Nelson conducted an evidentiary hearing in this case pursuant to section 120.57(1), Florida Statutes (2013), on November 4, 2013, by video teleconferencing with sites in Jacksonville and Tallahassee,
Florida.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office Box 5675 Douglasville, Georgia 30154
For Respondent: Roxie Powell, pro se
956 Detroit Street
Jacksonville, Florida 32254 STATEMENT OF THE ISSUE
The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c) or (g), Florida Statutes
(2010), and if so, what penalty should be imposed by the Education Practices Commission.
PRELIMINARY STATEMENT
On June 3, 2013, Tony Bennett, as Commissioner of Education (Petitioner or the Commissioner), filed a two-count Administrative Complaint against Respondent, Roxie Powell, charging her with violating section 1012.795(1)(c) and (g).
Respondent filed an Election of Rights form on July 22, 2013, requesting a hearing pursuant to section 120.57(1). On September 10, 2013, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing.
By notice issued September 23, 2013, the hearing was scheduled for November 4, 2013, and proceeded as scheduled. Petitioner presented the testimony of Carolyn Laws, Kathleen Adkins, Cynthia Bartley, and Jennifer Gray. Petitioner‟s Exhibits 1-29 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Derik Hampton and Tamika Stanley. Both parties were given the opportunity to late-file exhibits, and Petitioner‟s Exhibit 29, the deposition of Janet Heartsill, was filed November 21, 2013. Respondent‟s Exhibit 1 was filed December 4, 2013. Neither party complied with the deadline established at hearing for filing these exhibits, but both have been considered.
The Transcript of the proceeding was filed November 21, 2013. Respondent and Petitioner filed Proposed Recommended Orders on December 4, 2013, and December 6, 2013, respectively. The parties‟ post-hearing submissions have been carefully reviewed in the preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is a teacher certified by the State of Florida in the area of elementary education, holding Florida Educator‟s Certificate 832516, which expired June 30, 2013.
At all times material to the allegations in this case, Respondent was employed by the Duval County School District (DCSD). During the 2009/2010 school year, she taught second grade at Pickett Elementary School (Pickett). Pickett is a “turnaround school,” in which student improvement is crucial.
Carolyn Laws was the principal of Pickett from 2007 through 2010, and is currently the principal at Brentwood Elementary School. She has been employed by the Duval County School District for 20 years. Since 2004, she had taken the principals‟ training course in the use of the Teacher Assessment Tool (TAT) used in Duval County on an annual basis.
Ms. Laws has evaluated approximately 50-60 teachers using the TAT. Respondent is among the teachers she evaluated using this method.
The TAT contemplates several informal evaluations and at least two formal observations during the school year. The formal observations involve the use of the Teacher Assessment Instrument (TAI).
The TAI has a Part A and a Part B. Part A focuses on classroom observation, and Part B focuses on professional development. Part A is then broken down into several categories for observation and evaluation, with specific indicators within each competency. For example, for Competency A (promotes student growth and performance), the indicators listed include:
1) achievement is continuous and appropriate for age, group, subject area and/or student program classification; 2) provides evidence of adequate progress in meeting standards; 3) integrates student performance into lesson plan; 4) uses an objective system of student performance; and 5) shows measurable student gains toward meeting standards.
Before the formal evaluation is conducted, the principal and the teacher to be evaluated have a pre-evaluation conference at which they discuss the lesson the teacher intends to present during the observation, and a lesson plan is presented. Thus, the teacher is aware that he or she will be evaluated and when that evaluation will be conducted.
On October 13, 2009, Ms. Laws conducted an evaluation of Respondent‟s class of 13 students. Respondent had provided a
lesson plan in advance. During the evaluation, those areas that were adequately presented were checked on the TAI by the evaluator, and those areas needing improvement were marked with an “n.” Areas that the evaluator did not witness were left blank.
Ms. Laws found several areas identified on the TAI to be lacking or in need of improvement. Ms. Laws was concerned that the children in the classroom might not have understood the goals of the lesson, and did not have time to apply the information taught. She was expecting to see a central question, an indication of what was expected, and an anticipated outcome from the lesson. However, Ms. Laws did not witness those things, and the lesson plan provided did not coincide with what was taught that day.
Ms. Laws and Ms. Powell met on October 14, 2009, to discuss the observation, and Ms. Laws shared her concerns. Ms. Laws also advised Ms. Powell of the competencies that she needed to make sure she demonstrated in the next observation.
A second observation was scheduled for November 16, 2009, a date that Ms. Powell had identified as available. Again, Ms. Laws had several concerns with respect to the observation. For example, there were missing lesson plans, Ms. Powell was not using the required workshop model, the wrong school day was posted on the bulletin board, the lesson included no guided
lesson plans, and the lessons schedule needed to be adjusted because the sessions were too long. Ms. Powell also was not using the FAIR (Florida Assessments for Instruction in Reading) data to work with her students in appropriate small groups as she should, so that individual student needs were being met, and was not using the Florida Continuous Improvement Model (FCIM), an assessment tool the school uses every 8-10 days to note student progress.
Ms. Laws was concerned as to whether the students in Respondent‟s class were receiving appropriate instruction. She also was concerned that lesson plans in the month of October were missing.
On or about December 2, 2009, Respondent received a written Notice of Potential Unsatisfactory Evaluation from Ms. Laws, indicating that she had not demonstrated acceptable performance in the following competencies: B (evaluates
instructional needs of students); C (plans and delivers effective instruction); D (shows knowledge of subject matter); E (utilizes appropriate classroom management techniques including the ability to maintain appropriate discipline); and H (pursues professional growth). The notice contained an error, as competency “H” should have been competency “A” (Promotes student growth and performance). Ms. Powell refused to sign the notice, the delivery of which was acknowledged by a union representative.
As a result of the notice, Ms. Powell was given a success plan to assist her in improving the competencies that Ms. Laws had identified as deficient. Success plan members who were to assist Ms. Powell were Ms. Laws; Katie Atkins, an instructional coach; Mrs. Senior; Mrs. Howard-Hughes; and
Mrs. Curry, the union representative. The majority of the support provided for the support plan came from Ms. Laws and Ms. Atkins. Ms. Powell was given the opportunity to provide input with respect to the success plan.
A second Notice of Potential Unsatisfactory Evaluation was sent to Ms. Powell on January 8, 2010, and a meeting was held with Ms. Laws, Ms. Powell, and Ms. Powell‟s union representative. Ms. Laws sent the second notice because Ms. Powell had been out on sick leave at the end of the semester, and Ms. Laws wanted to make sure she had all of the information that was necessary before beginning the success plan.
Ms. Atkins worked extensively with Ms. Powell, observing her in the classroom and providing feedback, as well as modeling lessons for her, and making sure she followed the learning schedule established for her class.1/
According to Ms. Laws, Respondent “worked hard, worked really hard to complete” the success plan; however, completion of the success plan does not necessarily translate to a satisfactory evaluation. The skills developed through the success plan
process must transfer to the classroom in order to be effective. In Ms. Powell‟s case, those skills did not transfer as hoped.
On January 28, 2010, Ms. Laws conducted an informal observation of Ms. Powell in her classroom. During the observation, the mini-lesson reflected in Ms. Powell‟s lesson plans was not addressed when she presented the lesson. There was no standard or guided question presented so that the children would understand where the lesson was going or what was expected of them. The lesson plans did not match the learning schedule, the students seemed confused about the assignment, and were not engaged in their work. Ms. Laws discussed the observation with Ms. Powell and gave her some suggestions for improvement.
Ms. Powell‟s next formal evaluation was conducted on February 5, 2010. Ms. Laws was concerned that the students were revisiting a lesson that had been taught previously, instead of actually presenting a learning experience, especially given that Ms. Powell knew that the formal evaluation would take place that
day.
Another observation was conducted on February 17, 2010.
The lesson was a math lesson addressing use of multiples to reach
In Ms. Laws‟ view, Ms. Powell‟s explanation to the children was too long for the lesson. She felt the children needed to have more strategies and did not have clearly identified
expectations. She was concerned whether there was any learning taking place in the classroom.
A review of the TAI for all of the observations conducted shows that there were several skill areas that were never demonstrated during the observations, despite instructions to improve in these areas or to at least present some aspect of the skill in her teaching.
On February 22, 2010, Ms. Laws conducted another formal observation. The concerns expressed were much the same as with previous observations. While Ms. Powell was beginning to use some of the FAIR data, she still needed to meet with her students and make sure they were grouped appropriately. Because she had not already placed her students in appropriate groups, the guided reading was not conducted as it should have been.
Ms. Laws conducted another formal observation on February 26, 2010. Again, the lesson taught that day was not reflected in Ms. Powell‟s lesson plans. She had grouped her math students and had guided lesson plans provided, so Ms. Laws noted improvement in those areas. One of the things that had been discussed with Ms. Powell was the need to communicate expectations with the students in a student-friendly manner. Instead, Ms. Powell had posted the number of a particular standard on the bulletin board, “MA.2.A.2.1,” instead of a word
description of the standard. There was also a wrong answer written on the board that she did not correct.
Finally, Ms. Laws conducted another informal evaluation on March 15, 2010. For this observation, Ms. Powell had her standard on the board that indicated what the children were learning. However, her lesson plans were incomplete. The students were supposed to be working with other students on making judgments, and instead, Ms. Powell was telling them what to write down as opposed to having the students come up with their own answers. In addition, the portfolios for the children needed to be organized so that she could keep track of the growth of the children in her classroom.
On March 26, 2010, Respondent received her evaluation for the year. She had satisfactory scores for competencies E (utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline); F (shows sensitivity to students by maintaining a positive classroom environment); G (communicates with parents); H (pursues professional growth); and I (demonstrates professional behaviors). She received a “needs improvement” in competencies B (evaluates the instructional needs of students) and D (shows knowledge of subject matter). For competencies A (promotes student growth and performance) and C (plans and delivers
effective instruction), she received an unsatisfactory score. Her overall evaluation was rated as unsatisfactory.
When a teacher in the DCSD receives an unsatisfactory evaluation, he or she has the option of staying at the current school or moving to a different school within the district for the following year. Ms. Powell opted to transfer to another school.
During the 2010/2011 school year, Respondent was assigned to Merrill Road Elementary School (Merrill Road). Jennifer Gray was the principal at Merrill Road.
Ms. Gray worked in the DCSD for eight years, and was a teacher or administrator in Kentucky and Nassau County, Florida, for a combination of 13 years prior to her employment in Duval County.
Ms. Gray has been trained in using the Duval County Public Schools Teacher Assessment System each year since 2006. She has performed approximately 150 teacher evaluations using the tool.
Ms. Gray and Ms. Powell began at Merrill Road the same year. Ms. Powell was assigned to teach first grade.
On September 27, 2010, Ms. Gray held a pre-observation conference with Ms. Powell to go over the lesson Ms. Powell would be teaching during her formal evaluation the next day. The following day Ms. Gray observed Respondent in the classroom and
took copious notes on what transpired during her time there. During the observation, the lesson taught did not match the lesson plan. In addition, Ms. Powell used a book walk as a teaching tool. During the book walk, she would ask questions such as, “I wonder who the party is for,” and “I wonder who decorated the table.” While according to Ms. Gray, a book walk is a good model to use, Respondent should have let the children question and wonder as opposed to doing it all herself. Ms. Gray also noted some classroom management issues, felt that the expectations for the students were not clearly defined, and that the students were clearly confused about their assignment.
As with Ms. Laws, a checkmark on the TAI means the identified indicator was observed. If an indicator is not checked, it indicates that Ms. Gray did not see it during the observation. Ms. Powell‟s TAI for September 28, 2010 had only five indicators checked. Ms. Laws met with Ms. Powell after the observation and shared her specific concerns.
On October 5, 2010, Ms. Powell received a Notice of Potential Unsatisfactory Evaluation. The notice advised
Ms. Powell that she needed to show acceptable levels of improvement with respect to the following competencies: A (promotes student growth and performance; B (evaluates instructional needs of students); C (plans and delivers effective instruction); E (utilizes appropriate classroom management
techniques including the ability to maintain appropriate discipline); and I (demonstrates professional behaviors).
A success plan was developed to help Ms. Powell achieve a satisfactory evaluation. Members of the success team were Cynthia Bartley, Janet Heartsill, Michelle Lenhart, and Ronise Collins, as well as Jennifer Gray. Ms. Powell was able to provide input with respect to the success plan.
While the success plan was completed, the competencies were not successfully demonstrated in the classroom.
Ms. Powell‟s next formal observation was to take place on January 27, 2011. She met with Ms. Gray the day before, and discussed what lesson she was going to present. Ms. Powell filled out a Pre-Observation form that Ms. Gray had devised, identifying the lesson to be taught, and certain features related to the lesson. The form had blanks to be completed for the following information: the date and time of the observation; whether the lesson was a new concept or a review; the standard(s) being taught; the connection; the mini-lesson; the active engagement; and what is being shared. It also identified items that the observed teacher should have available for the principal at the time of the evaluation, such as an assessment notebook, lesson plan book, grade book, three writing portfolios and reading logs/response journals, parent communication logs,
student conference logs, and other celebrations the teacher would like to share.
Ms. Powell indicated that the lesson would be a review.
She did not identify the standard being taught, and indicated that the lesson would be about identifying settings for a story, and seeing how the setting helps the reader better understand the story.
Ms. Gray felt there was some misalignment between the lesson plan and the lesson. The essential question, which was written on the board, was, “how does thinking about the most important parts of the story help me to understand and be a better reader?” However, the students spent the majority of the lesson simply identifying the setting and never making the connection to how it makes them better readers. In other words, while the students could identify the setting, Ms. Powell did not help them connect the setting to why the setting is important and how it helps them with their reading.
Control in the classroom was not consistent, and because minor behavioral issues were not dealt with effectively, the students got off task and were not able complete their work. For example, 20 minutes into the group work, 10 out of 12 students were off task (either finished, never started, playing with crayons, or just sitting there). In short, the lesson
became about identifying a setting rather than learning why knowing the setting helps the reader understand the story.
Ms. Gray met with Ms. Powell after the lesson and went over her concerns. She told Ms. Powell that the skills she was learning through the success plan need to translate into the classroom.
Another formal evaluation was conducted on March 14, 2011. The lesson to be presented dealt with how the attributes of different items affect mass. During the observation, Ms. Gray saw similar issues as in previous observations, with gaps in learning, disorganized lesson plans, and an incomplete presentation. The lesson presented also was completely off of the district learning schedule, and may not have been appropriate for a first-grade class, which is something Ms. Powell should have known.
On March 18, 2011, Ms. Powell received her evaluation for the year. She received a satisfactory score for competencies G (communicates with parents) and H (pursues professional growth); a needs improvement score for competencies D (shows knowledge of subject matter), E (utilizes appropriate classroom management techniques), and F (shows sensitivity to students by maintaining a positive classroom environment); and an unsatisfactory score for competencies A (promotes student growth
and performance), B (evaluates the instructional needs of students), and C (plans and delivers effective instruction).
The overall evaluation was unsatisfactory.
On March 24, 2011, Vicki Reynolds, Chief Human Resources Officer for the DCSD, notified Ms. Powell by certified mail that she was receiving a reprimand as Step II discipline pursuant to the DCSD‟s Progressive Discipline Plan. The reprimand was based upon a claim that she threw a chair and verbally threatened a student in her class. Respondent admits receiving the reprimand but denies knocking over the chair in anger. Petitioner presented no evidence with respect to the factual basis for the reprimand.
On April 12, 2011, Respondent received a second reprimand and three days‟ suspension without pay as Step III discipline. The reprimand was based on the belief that
Ms. Powell had directed two students to “find Mr. D.” and get her cell phone out of her car, resulting in the students roaming the halls before finding Mr. D., Derick Hampton. The only evidence presented at hearing indicates that at the end of a parent conference, Ms. Powell asked if the parent, Tamika Stanley, would walk the children down to the hallway to the custodian, and give Mr. Hampton Ms. Powell‟s keys so that something could be retrieved from her car. Ms. Stanley walked with the children down the hall to Mr. Hampton and gave him the keys. The children
wanted to go with him to the car, so she waited for them to return. Once they did, Mr. Hampton returned the keys to Ms. Stanley, and Ms. Stanley returned both the keys and the children to Ms. Powell.
It does not appear from the only testimony presented that children were ever allowed to roam the halls and they were not left unescorted.
On May 10, 2011, Ed Pratt-Dannals, Superintendent of Schools for the DCSD, notified Respondent that her employment would be terminated effective June 14, 2011, as a result of her unsatisfactory evaluations for the school years 2009/2010 and 2010/2011. The letter of termination makes no mention of the two reprimands, but is based only on the two unsatisfactory evaluations.
On July 28, 2011, Respondent and the School Board entered into an irrevocable resignation agreement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1).
This is a proceeding to discipline Respondent's educator certificate. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and
convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &
Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d
292 (Fla. 1987).
As stated by the Florida Supreme Court:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005), (quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Administrative Complaint alleges the following:
On or about December 2, 2009, the Respondent received a written Notice of Potential Unsatisfactory Evaluation from her Principal at Pickett Elementary School, indicating that prior to the date of the Respondent‟s final evaluation, the Respondent must show acceptable levels of improvement in the following areas:
Competency B: Evaluates instructional needs of students;
Competency C: Plans and delivers effective instruction;
Competency D: Shows knowledge of subject matter;
Competency E: Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline; and
Competency H: Pursues professional growth.
On or about December 7, 2009, the Respondent was placed on a Success Plan citing areas needing remediation, including:
Evaluate instructional needs of students;
Plan and deliver effective instruction;
Show knowledge of subject matter;
Utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline; and
Pursue professional growth.
On or about March 26, 2010, the Respondent received an overall unsatisfactory evaluation for the 2009-2010 school year. The Respondent‟s evaluation indicated Needs Improvement in Competency B
- Evaluates Instructional Needs of Students and Competency D – Shows knowledge of subject matter, and Unsatisfactory in Competency A - Promotes student growth and performance and Competency C – Plans and delivers effective instruction.
The Respondent was transferred to Merrill Road Elementary School for the 2010- 2011 school year.
On or about October 5, 2010, the Respondent received a written Notice of Potential Unsatisfactory Evaluation from her Principal at Merrill Road Elementary School, indicating that prior to the date of the Respondent‟s final evaluation, the Respondent must show acceptable levels of improvement in the following areas:
Competency A: Promotes student growth and performance;
Competency B: Evaluates instructional needs of students;
Competency C: Plans and delivers effective instruction;
Competency E: Utilizes appropriate classroom management techniques, including
the ability to maintain appropriate discipline;
Competency H: Pursues professional growth; and
Competency I: Demonstrates professional behaviors.
On or about March 4, 2011, the Respondent knocked over a chair in anger while dealing with a student‟s behavior in her classroom. On or about March 17, 2011, the Respondent received a written reprimand.
On or about March 18, 2011, the Respondent received an overall unsatisfactory evaluation for the 2010-2011 school year. The Respondent‟s evaluation indicated Needs Improvement in Competency D
– Shows knowledge of subject matter, Competency E: Utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline, Competency F – Shows sensitivity to students by maintaining a positive classroom environment, and Competency I: Demonstrates professional behaviors, and Unsatisfactory in Competency A – Promotes student growth and performance, Competency B: Evaluates instructional needs of students and Competency C – Plans and delivers effective instruction.
On or about March 18, 2011, the Respondent sent two unsupervised students to retrieve her cell phone from her personal vehicle. On or about April 12, 2011, the Respondent was issued a letter of reprimand and a three-day suspension without pay.
On or about May 10, 2011, the Duval County Superintendent notified the Respondent that she was to be terminated, effective June 14, 2011, for professional incompetence.
On or about July 27, 2011, the Respondent entered into an irrevocable
resignation agreement with Duval County School Board. The resignation was effective June 14, 2011.
Petitioner proved the allegations in paragraphs 3-7, 9, 11, and 12 by clear and convincing evidence. With respect to paragraphs eight and ten, Petitioner presented only evidence that discipline had taken place and the nature of the discipline, but did not present evidence regarding the underlying factual basis for the discipline with respect to either event.
Based upon these facts, Petitioner alleged that Respondent violated section 1012.795(1)(c) and (g), Florida Statutes. Those subsections provide:
1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the
Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
* * *
(c) Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school.
* * *
(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person‟s effectiveness as an employee of the district school board.
Section 1012.796, which describes the disciplinary process, provides in pertinent part:
Upon a finding of probable cause, the commissioner shall file a formal complaint and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall make recommendations in accordance with the provisions of subsection (7) to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.
A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:
Denial of an application for a teaching certificate . . . .
Revocation or suspension of a certificate.
Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.
Placement of the teacher . . . on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, . . . to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation . . . .
Restriction of the authorized scope of practice of the teacher . . . .
Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.
Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently . . . .
The Commission has adopted a rule which defines the term “incompetency.” At the time of the events giving rise to this case, the rule was Florida Administrative Code Rule 6B-4.009.2/ The rule provides in pertinent part,
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 . . . ;
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.
Petitioner has proven Count 1, a violation of section 1012.795(1)(c), by clear and convincing evidence. While no panel of experts was presented by the Commissioner, the decision to use such a panel is discretionary, not mandatory. The conduct demonstrated in this case showed a repeated failure to communicate with the students in Respondent‟s classroom, so as to leave the students deprived of a minimum educational experience. Whether that failure stems from a lack of foundational training or a lack of motivation to improve is immaterial at this point. Despite receiving a significant amount of help and support, Respondent continued to have missing lesson plans, lessons that did not match the required curriculum and schedule, and lessons that “missed the
mark” in terms of presenting the core skills they were designed to teach.
Petitioner has not proven Count 2, a violation of section 1012.795(1)(g), by the same evidentiary standard. The Administrative Complaint does not differentiate which behaviors are meant to support this violation. A reasonable inference is that the charge is supported by the allegation that Respondent turned over a chair in anger, and sent students unsupervised on a personal errand. Petitioner presented evidence regarding the discipline Respondent received based upon these allegations. However, it presented no evidence with respect to the allegations themselves.
Assuming that Petitioner also intends for the unsatisfactory evaluations to support a violation of section 1012.795(1)(g), a teacher that has been found to be incompetent is, by definition, a teacher whose effectiveness as an employees is seriously reduced. However, section 1012.795(1)(g) ties the reduction of effectiveness to personal conduct of the teacher, not the inability to perform his or her teaching responsibilities. In any event, Respondent‟s unsatisfactory performance is adequately addressed by section 1012.795(1)(c).
The Commission has adopted disciplinary guidelines for the discipline of instructional personnel, providing a range of penalties normally imposed for violations of section 1012.795.
Fla. Admin. Code R. 6B-11.007. For a violation of section 1012.795(1)(c), the recommended penalty range is suspension to revocation. Rule 6B-11.007(2) also provides that “[e]ach of the following disciplinary guidelines shall be interpreted to include
„probation,‟ „Recovery Network Program,‟ „letter of reprimand,‟
„restrict scope of practice,‟ „fine,‟ and „administrative fees and/or costs‟ with applicable terms thereof as additional penalty provisions.”
Petitioner recommends revocation as appropriate.
Respondent‟s teaching certificate has expired. After a thorough review of the evidence, it is concluded that, should Respondent be willing to make the effort, she may be able to return to the teaching profession given substantial retraining. While there are clear deficiencies in her performance, Respondent‟s evaluations also reflected a positive, professional attitude and good rapport with students and parents. The undersigned has reviewed the mitigating factors in the Commission‟s disciplinary guidelines, and recognizes that, according to at least one of her principals, Respondent tried very hard to improve her performance. Revocation would remove her ability to teach at any level. See rule 6B-11.007(3)(i), (j), (l), and (m).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(g), Respondent be prohibited from applying for a new certificate for a period of at least three years.
DONE AND ENTERED this 12th day of December, 2013, in Tallahassee, Leon County, Florida.
S
LISA SHEARER NELSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2013.
ENDNOTES
1/ The learning schedule is a guide provided by the DCSD for teachers to follow to make sure that they cover all of the benchmarks needed from the beginning of the year to the end of the year. Because Pickett was a turnaround school, teachers were supposed to be teaching on a learning schedule with a five-day window for completion of identified subjects to make sure all of the necessary benchmarks are completed before administration of the FCAT and before the end of the school year.
2/ Effective July 8, 2012, the rule was amended and transferred to rule 6A-5.056.
COPIES FURNISHED:
Ron Weaver, Esquire Post Office Box 5675
Douglasville, Georgia 30154
Gretchen Kelley Brantley, Executive Director Education Practices Commission
Department of Education Turlington Building, Suite 224
325 West Gaines Street Tallahassee, Florida 32399
Roxie Elizabeth Powell 956 Detroit Street
Jacksonville, Florida 32254
Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399
Marian Lambeth, Bureau Chief Bureau of Professional
Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399
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 | Document | Summary |
|---|---|---|
| Mar. 28, 2014 | Agency Final Order | |
| Dec. 12, 2013 | Recommended Order | Petitioner demonstrated a violation of section 1012.795(1)(c). Recommend that Respondent be prohibited from applying for a new certificate for three years. |
