STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PAM STEWART, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
DONNA BURNEY,
Respondent.
/
Case No. 13-4958PL
RECOMMENDED ORDER
Pursuant to notice, on April 2, 2014, and May 14, 2014, Lisa Shearer Nelson of the Division of Administrative Hearings conducted a hearing by means of video teleconferencing, with sites in Tallahassee and Jacksonville, Florida.
APPEARANCES
For Petitioner: Ron Weaver, Esquire
Post Office 5675
Douglasville, Georgia 30154
For Respondent: T.A. Delegal, Esquire
Delegal Law Offices, P.A.
424 East Monroe Street Jacksonville, Florida 32202
STATEMENT OF THE ISSUE
The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c) and (g), Florida Statutes (2010), as charged in the Administrative Complaint, and if so, what penalty should be imposed?
PRELIMINARY STATEMENT
On September 18, 2013, Pam Stewart, as Commissioner of Education, filed an Administrative Complaint against Respondent, Donna Burney, charging her with violating section 1012.795(1)(c) and (g). Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On December 23, 2013, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.
On January 2, 2014, the case was noticed for hearing to commence March 6, 2014. At the request of Petitioner, the case was rescheduled for April 2, 2014. At the beginning of the proceeding on April 2, the parties advised that the presentation of evidence would take longer than the time scheduled for the hearing. Petitioner presented the testimony of Angela Kasper and Andrea Williams-Scott, and Petitioner’s Exhibits 1-15 and 18 were admitted into evidence. The parties agreed to reconvene the hearing on May 22, 2014, and a Notice was issued to that effect. However, on May 2, 2014, Respondent filed an Unopposed Motion to Reschedule Trial Date, indicating that May 22 was the last day of school at the school where Respondent teaches, and her attendance was required. Respondent’s Motion was granted and the hearing was re-noticed for May 14, 2014.
The hearing reconvened as scheduled, and Petitioner presented the testimony of Sandy Fletcher, Iris Burton, Ronrica Troy, Contrina Woods-Isidore, and Debra Hammette. Petitioner’s Exhibits 16-17, 19-22, 24-27, 30-31, and 33-43 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Dorothy Peterson and Jody Kinney, and Respondent’s Exhibits 7-9 were also admitted.
The Transcript of the proceedings for both dates was filed with the Division on June 11, 2014. Both parties timely filed Proposed Recommended Orders. Prior to hearing, the parties filed a Prehearing Stipulation in which they stipulated to certain facts which would need no evidence at hearing. Where relevant, those facts have been incorporated into the Findings of Fact below.
On May 14, 2014, Respondent filed a challenge to the State Board of Education’s definition of “incompetency” contained in Florida Administrative Code Rule 6B-4.009. In Burney v. State
Board of Education, Case No. 14-2205RX (DOAH July 7, 2014), the undersigned found that DOAH did not have jurisdiction to consider the challenge. On July 8, 2014, the parties in this case were given an opportunity to supplement or revise their proposed recommended orders in order to address the outcome in Case
No. 14-2205RX. Both parties took advantage of the opportunity,
and those Revised Proposed Recommended Orders have been carefully considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Respondent holds Florida Educator Certificate 806958, covering the areas of elementary education and primary education, which is valid through June 30, 2015.
Respondent holds a bachelor’s degree in mass communications, a master’s degree in early education, and a post- graduate degree in early Montessori education.
At all times material to the allegations in the Administrative Complaint, Respondent was employed as a teacher at Hyde Park Elementary School (Hyde Park) and Gregory Drive Elementary School (Gregory Drive) in the Duval County School District (DCSD).
Respondent received performance evaluations that her supervisors characterized as unsatisfactory for the 2009-2010 and 2010-2011 school years.
For the 2009-2010 school year, Respondent taught first grade at Hyde Park. She had taught at Hyde Park since the 2008- 2009 school year. Her evaluations both at Hyde Park and John Ford Elementary prior to the 2009-2010 school year all reflect satisfactory, high performing, or outstanding ratings on individual rating criteria. For each year where an evaluation
was included in Respondent’s Exhibit 8, the overall rating was satisfactory.
The principal at Hyde Park for the 2009-2010 school year was Angela Kasper. The 2009-2010 school year was Ms. Kasper’s first year as principal of Hyde Park, although she had been a principal at another school previously. When Ms. Kasper came to Hyde Park, the school was considered an “A” school. It is now a “D” school. Hyde Park is in an area of town known for gang violence and declining neighborhoods.
Ms. Kasper was responsible for evaluating Respondent.
She performed multiple classroom observations, including observations on September 23, 2009; January 19, 2010; and February 26, 2010. The assistant principal, Ronrica Troy, also performed an observation on March 19, 2010.
A Teacher Assessment Instrument (TAI) is used to record the results of an observation and must be discussed with the teacher following the observation. The TAI lists Competencies
A-I, with varying numbers of “indicators” under each competency. The evaluator checks those competencies that are demonstrated during an observation, and on the second page of the document, circles those competencies that have not been demonstrated sufficiently. However, there is no standard as to how many items needed to be checked in order for a teacher’s performance to be considered satisfactory. Regardless of the number checked, the
ultimate determination of sufficiency was within the discretion of the rating principal.
Not all competencies can be demonstrated during the observation itself. The Teacher Assessment Manuals for both the 2009-2010 and 2010-2011 years recognize this fact. Both say:
The TAI is also designed to measure and document possession of important skills and professional behaviors that may not be readily observable in the classroom setting. The instrument is designed to facilitate assessment of classroom performance and other teacher characteristics, which are linked to effective student instruction.
The instructions to supervisors recognize this TAI feature. For each year at issue, the instructions to principals/supervisors included the following:
Conduct the observation using the TAI. All competency indicators that are observed during this observation will be checked on the TAI.
Complete the TAI for all competencies/indicators not completed during the classroom observation. After the instrument has been completed, review and rate the data, and prepare the report to share with the employee.
The TAI for the September 23, 2009, observation indicated that all competencies are satisfactory except
(A) promote student growth and performance; (B) evaluate instructional needs of students; (C) plan and deliver effective instruction; (D) show knowledge of subject matter; and
(E) utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline.
On September 28, 2009, Ms. Kasper issued Respondent a Notice of Potential Unsatisfactory Performance advising her that she must improve in the following areas or she would receive an unsatisfactory evaluation for the school year: (A) promote student growth and performance; (B) evaluate instructional needs of students; (C) plan and deliver effective instruction; (D) show knowledge of subject matter; and (E) utilize appropriate classroom management techniques, including the ability to maintain appropriate discipline.
On or about October 26, 2009, a Success Plan was created and a Success Plan Team was established for Respondent. The Success Plan team (consisting of Ms. Kasper, Assistant Principal Ronrica Troy, and Iris Burton) met with Ms. Burney on October 26, 2009; November 17, 2009; November 23, 2009;
January 22, 2010; and March 17, 2010.
Several strategies for improvement were included in the Success Plan. Tasks (referenced as “strategies”) included in the Success Plan were as follows:
Competency A: Promote Student Growth and Performance
Develop lesson plans for all content areas that demonstrate differentiated instructional practices based on student needs as determined by the principal.
Plans must be current, available at all times, connected and reflect strategies that are based on Sunshine State Standards and the DCPS-Learning Schedule
Maintain Data Notebook with evidence of on-going usage for lesson development and tracking/disaggregating for individual student progress
Implement, with a mentor, a breakdown of grading criteria with a variety of components (ex: classwork, homework, participation, projects, tests)
Provide evidence that grading is accurate and based on a sufficient number and variety of learning tasks
Competency B: Evaluates Instructional Needs of Students:
Create, maintain and keep current student portfolios that include multiple sources of student work that document student progress toward the standard as determined by the Principal.
Assessments/data will be organized in Data Notebook and accessible during instructional time and utilized to drive lesson development (Collected data should include current: Reading, Math and Science Monitoring Forms, PMP, Safety Net tracking, DRA2, FAIR reports, running records, Scrimmage reports, emergent reader checklist, writing profiles, and Data from Riverdeep Destinations Reading/Math)
Communicate individual progress with students through parent conferences with feedback from mentor.
Consistently modify instruction based on assessed student performance as determined by the principal.
Competency C: Plans and Delivers Effective Instruction
Utilize guided questions in the delivery of instruction for all content areas to focus learning expectations, higher level thinking and understanding – questions will be highlighted in lesson plans and posted during delivery of specific content area subject matter.
Read America’s Choice, “Independent Reading, Phonemic Awareness and Phonics, Writing Planning Mini-Lessons, & Conferencing/Revising Monographs Series” as a review on how to effectively deliver the workshop models in all content areas and meet with principal to discuss findings.
The lesson plans will always include beginning/ending review, clearly defined learning task, specific learning expectations, corrective feedback and clarification (The Workshop Model) and the use of the Learning Schedule.
The lesson presentation will demonstrate the appropriate choice of learning activities, strategies and developmentally appropriate assignments/materials that are used as they relate to student’s needs.
Observe mentor and other grade level teachers in the workshop model. Consistently implement strategies learned from them.
Competency D: Shows Outstanding Knowledge of Subject Matter:
Read Professional books/articles readings to become more familiar with best practices (ex: planning, effective instructional delivery, differential instruction, or the workshop model (ex: Harry Wong, or Diane Heacox)
Use feedback from announced and unannounced visits using various feedback forms such as TAI, FPMS, Look-Fors, and
Classroom Walkthrough instruments to modify and adjust delivery if needed.
Participate in Guided Reading and Differentiated Instruction workshops, and create a Classroom Instruction Plan on how you will implement what was learned.
Use content area Look-For while reviewing videotaped/audiotape lessons of yourself (content area to be determined) and meet with Principal to discuss your findings.
Competency E: Utilizes Appropriate Classroom Management Techniques:
Develop Classroom Management Plan that addresses appropriate behavior and submit classroom management plan to Principal and make adjustments based on feedback
Review list of interventions from, The Teacher’s Encyclopedia of Behavior Management by Randy Sprick, to apply age appropriate behavior management strategies for the management of student (positive and negative) behavior.
Submit list to principal and make adjustments based on feedback, upon approval interventions should consistently be used in the management of student behavior.
Develop, post, and follow daily class schedule to assist in effectively keeping students on task, stopping misconduct, using instructional time effectively, and maintaining instructional momentum.
Demonstrate consistent and effective classroom management techniques as measured by TAI, announced and unannounced Classroom Walk-Throughs, and FPMS Behavior Management Domain 2.0 as determined by the principal.
Consistently maintain a neat, clean, and organized classroom. Note:
Classroom appearance and organization will be monitored during Formal, Informal observations and Classroom Walk-Throughs.
Develop and implement CHAMPS activity/transition protocol with mentor.
Observe mentor and other teacher’s rituals and routines. Consistently implement per Principal’s satisfaction.
Ms. Burney cooperated fully with the Success Plan process. Out of this somewhat daunting list of strategies, there were only two that Ms. Kasper indicated were not completed:
under Competency B, the requirement to “create, maintain and keep current student portfolios that include multiple sources of student work that document student progress toward the standard as determined by the principal”;1/ and under Competency C, “to consistently modify instruction based on assessed student performance as determined by the principal.” Ms. Kasper stated that she did not see student portfolios during a subsequent observation, but gave no real explanation for her conclusion regarding the second area achieved. As an overall result, at the conclusion of the Success Plan, it is indicated that the plan has been successfully completed but that the competencies have not been successfully demonstrated.
During the Success Plan process, Ms. Kasper testified that she communicated with Ms. Burney about her progress and how she could improve. However, the nature of the communication is somewhat suspect. For example, Ms. Kasper verbally reprimanded Ms. Burney for failing to have her lesson plans on her desk at
all times. In December, Ms. Burney had an extended absence due
to illness and was out of school from approximately December 1 through December 11. On December 11, 2009, Ms. Kasper issued a formal letter of reprimand to Ms. Burney, stating:
On October 2, 2009, I verbally reprimanded you for reporting to work unprepared to teach your students. Lesson plans were to be on your desk at all times and you were to have emergency plans with the bookkeeper.
To review the events as of today,
December 7, 2009, you have not provided emergency plans to the bookkeeper and lesson plans were not available today when a substitute was called in for you at the last minute. Later in the morning the bookkeeper checked her email and you did send in plans but it was too late to get them to the substitute. She had other duties that kept her away from checking her email . . . .
Your failure to leave adequate lesson plans for substitute personnel is neglect of your professional responsibilities as a classroom teacher and will not be tolerated. Your first responsibility is to your students and their education. If you find yourself incapable of currently meeting this responsibility for whatever reason I would encourage you to consider taking a personal leave until matters in your personal life are resolved to the extent that they no longer interfere with your teaching responsibilities . . . .
Respondent responded to the reprimand, stating: I respectfully rebut the letter of December
11, 2009 from Angela Kasper, Principal. The
Step II of the Progressive Discipline Plan states “Unprepared for Students.”
I unequivocally state that I met my professional responsibilities and commitments as an educator during my absence of 12/1 to 12/11. The dates and occurrences
of unpreparedness that are outlined in the disciplinary letter can be refuted by my attainment of the Kelly Services call logs, my lesson plans, and emails. According to my grade level chairperson, the only occasion when the lesson plans were not available was when the Duval County School Board computers were down for the morning. The lesson plans had been sent by email the previous evening. At no time, was my grade level team responsible for providing substitute plans.
Admittedly, as Mrs. Kasper stated in her letter, my lesson plans were not prepared one week in advance. However, the first week of my absence, against doctor’s advice, I went before school to set up the activities, tab the teacher editions, and provide detailed lesson plans and schedule. After the first week, all lesson plans were written and emailed the night before in preparation for the substitute.
Ms. Kasper admitted at hearing that she never checked the Kelly Service call logs, did not look at the lesson plan sent to the bookkeeper, and did not recall if the school board computers were down that morning. She did not check to verify whether the computers had gone down, and acknowledged that they sometimes do. Despite this, she used the reprimand in preparing Respondent’s evaluation.
On January 19, 2010, Ms. Kasper conducted a second formal evaluation. As a result of this observation, Ms. Kasper felt that Ms. Burney still needed improvement in Competencies A, B, C, and D. Ms. Burney provided a post-observation reflection in which she acknowledged that she was also disappointed in the
lesson, stating in part that the directions she gave the students were inadequate, and that students who were “pulled” from the lesson for reading support left other students without partners and caused further confusion. Respondent indicated that she retaught the lesson with much improved results. Ms. Kasper, however, did not see the lesson as retaught.
A third observation was conducted on February 26, 2010.
For this observation, Ms. Kasper was concerned that the lesson taught was not on the learning schedule for that time period. However, the learning schedule was not provided and she did not indicate when the lesson should have been taught. Nor does it appear that she raised this issue with Ms. Burney during the pre- observation conference. Ms. Burney’s pre-observation notes indicated that she was teaching the lesson based on classroom activities focusing on everyday problems and the solutions the children were offering. Ms. Kasper did not explain why teaching the lesson was inappropriate if the teacher felt the students would benefit. Ms. Kasper felt that Respondent was improving in Competency C, but not enough to be successful.
Finally, on March 19, 2010, Ms. Troy conducted an observation in Respondent’s classroom. Ms. Kasper asked her to do so in order to get a different viewpoint. Ms. Troy found Competencies A, B, and C to be deficient.
There were some inconsistencies between Ms. Troy’s assessment of Respondent regarding her available documentation and the determination in the Success Plan that Respondent had completed the documentation within days of the observation. For example, the Success Plan indicated that Respondent had achieved almost all of the indicators in Competency A within five days of the evaluation, whereas Ms. Troy indicated that she saw none of them. The same can be said with respect to the data notebook and other indicators under Competency B. Ms. Kasper acknowledged that she did not talk to Ms. Troy about the documentation examined for the Success Plan, and also acknowledged that many of the things identified on the TAI are not observable based on looking at a teacher teaching in the classroom. Instead, consistent with the Teacher Assessment Manual, they have to be checked off after reviewing the materials maintained by the teacher. For example, whether a teacher is interpreting data or using it for individual diagnoses, or plans instruction based on diagnosed student needs, cannot be determined simply by observing the teacher. Student data would have to be examined.
Ms. Kasper also admitted at hearing that for much of her testimony she was simply reading her notes and that her memory of events was not entirely clear. Further, and more importantly, she acknowledged that some of her notes and comments regarding Ms. Burney’s observations were more reflective of
Ms. Kasper’s personal preferences about the way things should be done, such as writing center names on the board rather than in a chart; having lesson plans on the desk instead of behind or in the desk; and having book bags on the back of student chairs, as opposed to somewhere else. Some of her preferences were what she viewed as “best practices.” “Best practices” are not part of any stated rules or standards. As a result, it is difficult to know how much of her evaluation of Ms. Burney was a result of her personal preferences as opposed to any district expectation.
On or about March 26, 2010, Ms. Kasper prepared an evaluation of professional growth for the 2009-2010 school year, which reflected an overall unsatisfactory rating. The evaluation indicated a satisfactory score in Competencies E through I; a needs improvement for Competencies A and D, and an unsatisfactory in Competencies B and C. The unsatisfactory scores resulted in negative points (two each), which resulted in an overall evaluation score of -4.00. In accordance with the Teacher Assessment Instrument used by the DCSD, this score resulted in an unsatisfactory evaluation.
At the time of Respondent’s evaluation, results from the FCAT had not been received. Petitioner did not present evidence regarding what, if any advancement the students in Ms. Burney’s class made during the year they were in her class.
Teachers who receive an unsatisfactory evaluation have the option to remain at the school where they received the evaluation or to transfer to another school. Respondent opted to transfer to another school, and was transferred to Gregory Drive Elementary School for the 2010-2011 school year to teach kindergarten.
Andrea Williams-Scott is the principal at Gregory Drive. She has been with the DCSD for 18 years, and is in her sixth year as principal at Gregory Drive. At the time Respondent came to the school, Ms. Williams-Scott was in her third year as principal.
Ms. Williams-Scott knew when Ms. Burney came to Gregory Drive that she transferred based upon a prior unsatisfactory evaluation. She reviewed the prior Success Plan but did not review the evaluations from the previous year. Instead, she met with Ms. Burney at the beginning of the year, and told her that she would conduct an observation within the first 30 days she was there, and they would go from there.
Ms. Williams-Scott conducted a formal observation on September 17, 2010. She did not see any indicators for Competencies A and B; thought the mini lesson was too long; and that the picture used for a picture walk was too small for the children to see. The essential question for the lesson was posted, but not really reviewed with the children. However,
Ms. Burney did a good job of explaining content to the children, and one child was able to restate the concepts perfectly. While Ms. Burney used CHAMPS, the district-wide class management model, Ms. Williams-Scott felt the classroom management was inconsistent. As a result of the observation, Ms. Williams-Scott found that Ms. Burney needed improvement in Competencies A-E.
A Success Plan was created for Respondent for the 2010- 2011 school year on or about October 1, 2010. Initially, Respondent appeared reluctant to participate in the Success Plan, but was more responsive as the year progressed. Once again, the Success Plan strategies are extensive. They include:
Competency A: Promotes Student Growth:
Establish classroom Safety Nets for children in the academic area of reading, math, and writing
Monitor and track students’ progress in meeting kindergarten standards for all subject areas
Create and maintain a data notebook that shows evidence that there is continuous use of data to develop and implement lessons that will insure student growth. Notebook needs to be in place by October 22, 2010. Data in notebook should be dated and include data gathered from DRAs, running records, guided reading, FAIR, Destinations Success for reading and math, EnVisions/Math Investigations assessments, conferencing note, anecdotal notes and PMP’s.
Implement and maintain an accurate grade book including a breakdown of grading criteria with a variety of
components and the next steps for student instruction beginning on October 22, 2010.
Competency B: Evaluates Instructional Needs of Students
Create and use rubrics for formal and informal assessments to track students’ progress and assist in developing personal plans for re-teaching and mastery. This data will be reviewed monthly at each monitoring meeting.
Match assessments to curriculum and standards as evidenced in lesson plans that you will create with mentor (reading) and Math Coach (math). Lesson plans (including differentiation for student needs, guided reading and guided math) are due to Mrs. Williams-Scott via email each Monday by 7:50 a.m.
Create and maintain student portfolios with a variety of up-to-date student work that documents student progress towards meeting the standard as determined by the principal.
Competency C: Plans and Delivers Effective Instruction
Review content/performance standards, curricula expectations with mentor and math coach.
Observe mentor/Math Coach conduct a lesson in your classroom. Debrief with the mentor/coach after the lesson(s) have been taught. Employ all strategies discussed in debriefing in daily instruction of students. Participate in the planning of all lessons modeled in your classroom.
Co-teach lessons with mentor/math coach. Debrief with the mentor/coach after the lesson. Employ all strategies discussed in debriefing in daily instruction of students. Participate in
the planning of all lessons modeled in your classroom.
List and review with students essential questions for subjects taught with class daily.
Write lesson plans that follow the workshop model. The components that the lesson plan should include are: Sunshine State Standard(s), essential question, mini-lesson, work-time, closing.
The presentation of the content in a lesson will demonstrate the use of developmentally appropriate learning activities, strategies, and materials for use in differentiated in centers and small group activities.
Teach lessons that are observed by the mentor/math coach. Debrief with the mentor/coach after the lesson(s) have been taught. Employ all strategies discussed in debriefing in daily instruction of students.
Competency D: Shows Outstanding Knowledge of Subject Matter
Read professional books/articles given to you by members of the support team to become familiar with best practices. After reading articles, discuss with the member of the support team your findings
and questions from the article. Implement newly found strategies in your classroom after the debrief.
Use feedback from all classroom visits to modify delivery of instruction to children.
Participate in grade-level specific Coaching Cycle.
Implement strategies covered in Coaching Cycles for your classroom.
Competency E: Utilizes Appropriate Classroom Management Techniques
Implement CHAMPS daily in your classroom.
Read professional books/articles given to you by the support team to become familiar with effective classroom management techniques. After reading articles, discuss with a member of the support team your findings and questions from the article. Implement newly found strategies in your classroom.
Post and follow classroom schedule daily to assist in effectively using instructional time and maintaining instructional focus and momentum.
Develop a plan for dealing with students’ misconduct. Submit a classroom management plan. After final approval, demonstrate effective classroom management techniques in all classroom observations.
Consistently maintain an organized classroom that is free from clutter and neat. Please note: Classroom appearance will be monitored via all classroom walkthroughs and formal/informal observations.
Observe mentor/math coach’s classroom management techniques during model lessons. Debrief about effective classroom management behaviors observed. Implement strategies discussed in debrief.
Competency F: Shows Sensitivity to Student Needs by Maintaining Positive School Environment
Establish classroom rules that all children have to follow.
Read and discuss the Code of Ethics with an administrator.
Videotape yourself teaching a lesson. Watch the lesson and debrief with mentor. Later in the process, videotape lesson and review with mentor. Note improvements from initial video in a written reflection.
Identify appropriate/negative consequences for behavior. Submit plan to an administrator. Once plan has been approved, implement the plan daily.
All of these strategies were completed with the exception of three: under Competency A, “monitor and track students’ progress in meeting kindergarten standards for all subject areas”; under Competency B, “create and use rubrics for formal and informal assessments to track students’ progress”; and under Competency C, “teach lessons that are observed by the mentor/math coach. Debrief with the mentor/math coach after the lesson(s) have been taught.” With respect to the rubrics,
Ms. Burney completed them but did not bring them to the Success Plan meeting for review, because of the amount of materials she was trying to bring to the media center for the meeting. When Respondent requested permission to return to her classroom to get them, she was not allowed to do so.
With respect to the strategy in Competency A,
Ms. Burney had DRAs, running records, and guided readings, but the documents the kindergarten teachers were using as a team were not present. While the final version of the Success Plan indicates she did not teach lessons that were observed by the mentor/math coach, debrief afterward and employ strategies discussed in the debrief, Ms. Hammette testified that she did in fact observe lessons that Ms. Burney taught and debriefed with her, and that Ms. Kannada did the same. Ms. Williams-Scott did not explain why this strategy was not met.
On October 28, 2010, Ms. Williams-Scott conducted a second formal evaluation of Ms. Burney. She noted no indicators as being seen in Competencies A or B. Several indicators were checked for Competency E; all were checked for Competencies D and G; half were checked for Competencies C, F, and H; and all but one for I. The TAI included several positive comments, as well as some negative ones. Most importantly, on the second page of the TAI where deficient areas are usually circled, Ms. Williams- Scott circled nothing. Her failure to circle any deficiencies was not based upon a belief that Ms. Burney had vastly improved her performance, but rather because, since a Success Plan was in place, she felt it to be unnecessary. Standing alone, however, there was no indication on the TAI that would provide to Ms. Burney an indication that her performance had or had not improved since the prior observation, and Ms. Williams-Scott testified that evaluations are based on observations, not completion of the Success Plan.
While Ms. Williams-Scott thought circling the deficient competencies to be unnecessary because a Success Plan was already in place, Ms. Kasper testified that it was important to circle competencies needing improvement so that a teacher has notice of the areas that need to improve, and that it is “absolutely critical for this evaluation process.” Ms. Kasper’s testimony on this point is credited.
On January 12, 2011, Ms. Williams-Scott conducted another formal observation. Under Competency A of the TAI, she checked the indicator that Ms. Burney “integrates student performance into lesson plan,” but no other indicators were checked. Notes by Ms. Williams-Scott stated that math data was insufficient, with no groups for individual instruction, and that inventories were not complete at all intervals for all students. No indicators were checked for Competency B. About half were checked for Competency C, and as was the case for the prior observation, there were both positive and negative remarks on the form. All indicators were checked for Competencies D, F, G, and I, most for Competency E, and one out of two for Competency H. Once again, no areas were circled as not being satisfactory on the second page.
On or about January 14, 2011, Ms. Williams-Scott issued to Respondent a Notice of Potential Unsatisfactory Performance advising Respondent that she must improve prior to the date of her final evaluation or she would receive an unsatisfactory evaluation for the school year.
The Notice advised Respondent that she needed to show improvement in the following areas: (A) Promote Student Growth and Performance; (B) Evaluate Instructional Needs of Students;
(C) Plan and Deliver Effective Instruction; (D) Show Knowledge of Subject Matter; (E) Utilize Appropriate Classroom Management
Techniques, Including the Ability to Maintain Appropriate Discipline; and (F) Show Sensitivity to Student Needs by Maintaining a Positive School Environment. Given the number of indicators checked for Competencies D, E, and F, and to some extent Competency C on the previous two TAI’s, their listing on the Notice seems unsupported. Ms. Burney signed the Notice but stated that she did not agree with it.
Finally, on March 22, 2011, Ms. Williams-Scott conducted another formal observation. Two indicators of five were checked for Competency A, with a note that there was a lack of documentation of student growth. One indicator, “uses multiple assessment techniques,” was checked for Competency B, with the note that running records were present for some students (but presumably not for all). Half of the indicators were marked for Competency C, all for Competency D, G, and I, most for Competency E, all but one for Competency F, and one of two for Competency H. Like the two previous TAI’s, no competencies were circled as deficient on the second page.
Ms. Williams-Scott prepared an evaluation of professional growth for Respondent and concluded that for the 2010-2011 school year, Respondent had achieved an unsatisfactory rating. She was rated as unsatisfactory for Competencies A and B, needs improvement for Competency C, and satisfactory for all other competencies. Consistent with the scoring required by the
Teacher Assessment System in place for the 2010-2011 school year, Ms. Burney received a score of -5.00, which resulted in an overall score of unsatisfactory.
As was the case with the Hyde Park evaluation by
Ms. Kasper, there was no consideration of FCAT scores or other statewide testing when Ms. Williams-Scott evaluated Ms. Burney.
On or about May 10, 2011, Ed Pratt-Daniels, Superintendent of Schools for Duval County School District, wrote to Respondent advising her that she would be discharged as a teacher with the DCSD, and providing her with information regarding her right to request a hearing with respect to her termination. Respondent elected not to request a hearing and on July 27, 2011, signed an irrevocable letter of resignation as an employee of the DCSD.
Teachers who worked with Ms. Burney described her as a very dedicated teacher who worked hard, came in early, and stayed late. She tutored students both through a tutoring company and on her own time, often did extra things for her students and developed positive relationships with them. One teacher who taught special education students in Ms. Burney’s classroom described her as having a special gift for bringing lessons down to the children’s level, and did not see a problem with her teaching style. After careful review of the evidence as a whole, the problems with Respondent’s performance stem not from
incompetency, but from a failure to adhere to the mandates of current educational theory based in large part on data collection, maintenance, and analysis.
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), Florida Statutes (2013).
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).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard is both qualitative and quantitative:
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 Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with
approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA
1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989
(Fla. 1st DCA 1991).
Petitioner alleges 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:
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(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.
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(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 term “incompetency” is not defined in section 1012.795(1)(c), and no rulemaking authority is provided to define the term for this purpose. The term is defined in Black’s Law Dictionary as “lack of ability, knowledge, legal qualification, or
fitness to discharge the required duty or professional obligation.” Black’s Law Dictionary 765 (6th ed. 1990). In other words, to be incompetent means a person is incapable of discharging his or responsibilities as a teacher.
The State Board of Education has adopted a rule which defines the term “incompetency” for the purpose of suspension or dismissal of a teacher by a school board pursuant to section 1012.33. 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 (Section 2131.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
No “panel of expert witnesses” testified in this case, and because it is a disciplinary matter as opposed to a just cause determination, the clear and convincing standard applies as opposed to preponderance of evidence. Section 231.09, referenced in the rule, was repealed in 2002. § 1058, ch. 2002-387, Laws of Fla. At the time of rule 6A-4.009’s final amendment in 1983, section 231.09, Florida Statutes (1983), provided:
Members of the instructional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.
No rules of the school board were placed into evidence in this case. Moreover, as stated in the findings of fact, many of the criticisms of Ms. Kasper, at least, were based upon personal preferences or “best practices,” which she acknowledged are not in statute or rule.
Similarly, the evidence does not demonstrate a 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. While there was evidence that there were areas in which Respondent could improve, as discussed below, the evidence did not produce in the mind of the undersigned a firm belief or conviction, without hesitation,
that the failures described above rose to the level of incompetency.
It also bears noting that Respondent’s evaluations did not take into account statewide-testing scores for her students. As explained by Ms. Kasper, the results of testing usually come after the deadline for submitting instructional evaluations. However, at the time of both evaluations at issue, section 1012.34(3)(a) provided that “the assessment procedure for instructional personnel and administrators must be primarily based on the performance of students assigned to their classrooms or schools, as appropriate.” As stated by the Fourth District Court of Appeal,
Regardless of the good intentions of the School Board in relying on what it felt were suitable criteria to evaluate teacher performance, by depending on an assessment procedure not primarily based on student performance as measured by state FCAT tests or local assessments, the School Board failed to follow the applicable law. As we held in Sherrod:
Section 1012.34(3) plainly says that the student performance on annual tests must be the ‘primary basis’ for teacher evaluation. It does not say that these annual tests ‘may’ play a role . . . .
But, the term primary in the statute unmistakably makes the student performance on annual tests the first consideration in any teacher evaluation.
Id. In section 1012.34(3), the Legislature has made a policy judgment, one we are not permitted to disregard.
Young v. Palm Bch. Cnty. Sch. Bd., 968 So. 2d 38, 39 (Fla. 4th DCA
2006)(quoting Sherrod v. Palm Bch. Cnty. Sch. Bd., 963 So. 2d 251,
253 (Fla. 4th DCA 2006)(which also states: “where the factors relied on by SBPSC for termination are confined to pedagogical method rather than personal conduct unquestionably showing unfitness for teaching, the statute in question requires the school board to base a decision to terminate primarily on student performance on the annual tests.”)). While this is not a teacher termination case, the evaluations giving rise to the proposed termination and subsequent resignation agreement by Ms. Burney are clearly the centerpiece of Petitioner’s case. Without evidence that the behaviors giving rise to the evaluations violated school board rules, or some other established standard for evaluating incompetency, there is not clear and convincing evidence to support a violation of section 1012.795(1)(c), as charged in Count
1 of the Administrative Complaint.3/
Count 2 of the Administrative Complaint charges Respondent with violating section 1012.795(1)(g)(personal conduct that seriously reduces that person’s effectiveness as an employee of the district school board). While the evidence presented does not support a finding that Respondent is incompetent, there is clear and convincing evidence that she did not maintain student
assessments, portfolios, and other student data in a consistent, organized fashion.
Evaluation of the educational process in Florida is data driven. While Respondent is a dedicated teacher who may relate to her students and be able to work with them adequately, her effectiveness in the current climate of education is severely undermined if she does not place a priority on student assessment and documentation, with a goal of adapting teaching methods to match the assessments for individual students. The evidence presented in this case demonstrated that, for the time period at issue, her documentation existed but was often not up to date or was incomplete and disorganized. Petitioner has established a violation of the provision charged in Count 2 by clear and convincing evidence.
The State Board of Education has adopted disciplinary guidelines for the imposition of penalties when a teacher has been found guilty of violating section 1012.795. Fla. Admin. Code R. 6B-11.007. For a violation of section 1012.795(1)(g), the penalty range is probation to revocation.
Respondent has the capacity to be a fine teacher. She has had good evaluations in the past, over a ten-year period, and in her current Montessori setting, she has been named Teacher of the Year. With additional training related to the current requirements for student assessment and documentation, she may
well achieve satisfactory or outstanding evaluations once again. With that in mind, probation with conditions requiring additional training is appropriate.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Education Practices Commission enter a Final Order finding that Respondent violated section 1012.795(1)(g), Florida Statutes. It is further recommended that she be placed on probation for a period of two years, and that as a condition of probation, she be required to take six semester hours of college-level courses in areas determined appropriate by the Commission.
DONE AND ENTERED this 22nd day of August, 2014, 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 22nd day of August, 2014.
ENDNOTES
1/ Ms. Kasper stated that for most of the year, she could not get Respondent to have data available, something Respondent disputes, and that toward the end of the year she had a data notebook but it was poorly kept. She did not explain why she checked this item as completed in the Success Plan if it was not updated to her satisfaction.
2/ Effective July 8, 2012, the rule was amended and transferred to rule 6A-5.056.
3/ Ironically, section 1012.33(1)(a) previously defined “just cause” as including, “as defined by the rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.” This section was amended in 2011, the year of
Ms. Burney’s second evaluation, to add as a basis for finding just cause “two consecutive annual performance evaluation ratings of unsatisfactory under s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under
s. 1012.34, three consecutive annual performance evaluations ratings of needs improvement or a combination of needs improvement or unsatisfactory under s. 1012.34.” § 13, ch. 2011- 1, Laws of Fla. This amendment demonstrates the Legislature’s recognition that there may be instances where a teacher has unsatisfactory evaluations that do not necessarily indicate incompetency. Otherwise, there would be no reason to add these bases for just cause when incompetency was already listed.
COPIES FURNISHED:
Gretchen Kelley Brantley, Executive Director Education Practices Commission
Department of Education
325 West Gaines Street, Suite 224 Tallahassee, Florida 32399-0400
Ron Weaver, Esquire Post Office Box 5675
Douglasville, Georgia 30154
T. A. Delegal, Esquire Delegal Law Offices, P.A.
424 East Monroe Street Jacksonville, Florida 32202
Lois S. Tepper, Interim General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 18, 2014 | Agency Final Order | |
| Aug. 22, 2014 | Recommended Order | Petitioner proved conduct seriously reducing Respondent's effectiveness but did not prove incompetency. Recommend probation with retraining. |
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