The Issue The issue for consideration in this case is whether Respondent's certificate as an educator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record of this proceeding, the following Findings of Fact are made: 1. At all times pertinent to the issues herein, Petitioner, Commissioner of Education, was the state official in Florida responsible for the certification of educators and the regulation of the teaching profession in Florida. Petitioner is authorized to seek appropriate disciplinary sanctions against persons holding teaching certificates in the State of Florida. The basis for disciplinary sanctions against a teacher's certificate are set forth in Sections 231.262 and 231.28, Florida Statutes. 2. Respondent, John H. Pedonti, Jr., is certified as an educator in this state by the Petitioner, and holds Florida Educator's Certificate 384296, valid through June 30, 2004, and covering the area of technical arts. At all times relevant herein, Mr. Pedonti was employed by the Hillsborough County School Board. 3. The chief factual allegation in this case is that Mr. Pedonti committed battery on his wife, who was also a teacher in the Hillsborough County school system. Mr. Pedonti and his wife told differing versions of the relevant events, but agreed on certain facts. The parties agreed that John and Debra Pedonti were separated and living apart in November 1997. Mrs. Pedonti and their three-year-old daughter lived in the family home. Mr. Pedonti lived in a house that he had owned since before the marriage. The parties agreed that throughout the night of November 21, 1997, Mrs. Pedonti left messages on the telephone answering machine at Mr. Pedonti's residence, and that Mr. Pedonti replied to none of them. The parties agreed that at about five a.m. on November 22, 1997, Mrs. Pedonti drove her van to Mr. Pedonti's house. Their daughter was asleep in the van. Mrs. Pedonti knocked on the door of the house. Mr. Pedonti opened the door, and they had a discussion culminating in Mr. Pedonti telling his wife to drive home and put their daughter to bed, and that he would follow in his own car. Mrs. Pedonti drove home, pulling the van into the front yard rather than the driveway. Mr. Pedonti arrived shortly thereafter and found his wife slumped over the steering wheel. They had an altercation concerning the dome light in the van. Mr. Pedonti then carried their daughter into the house and put her to bed, Mrs. Pedonti following them. The Pedontis then sat in the living room. Mrs. Pedonti lectured Mr. Pedonti at length concerning their marriage and their child, while he sat on the sofa with his eyes closed. At this point, physical violence erupted, though the parties disagree as to who was the perpetrator and who was the victim. 4. Mrs. Pedonti testified that, though they were separated, she and her husband were making efforts to reconcile and that he was spending most evenings at the family home. She had spoken to Mr. Pedonti by telephone on the afternoon of November 21, and expected him to come to the family home that night. She became increasingly worried as the night wore on, and began leaving messages asking him to call her. She left messages throughout the evening and into the early morning hours. At about five a.m., she put her sleeping daughter into her van and drove to Mr. Pedonti’s residence. She testified that she wanted to make sure Mr. Pedonti was "okay." 5. Mrs. Pedonti arrived at Mr. Pedonti’s residence and knocked on the door. She was crying. Mr. Pedonti answered the door. Mrs. Pedonti asked him why he had not called or come over, and whether he cared about her and their daughter. Mr. Pedonti asked her to be quiet, told her to get back in her car and drive home, and said that he would follow her. Mrs. Pedonti complied. She testified that she was still crying, but was relieved that her husband was all right. 6. Mrs. Pedonti testified that she drove home, and parked the car in the yard because it was closer to the front door than was the driveway. She was "emotionally drained after a long night of waiting and worrying and crying," and remained slumped over the steering wheel for the few minutes it took her husband to arrive. 7. Mrs. Pedonti testified that her husband arrived, walked to the passenger side of her van, and opened the sliding door so that he could carry their daughter into the house. He asked Mrs. Pedonti to turn off the dome light, but she could not because there was no switch on the light. Mrs. Pedonti testified that her husband punched the light with his fist, breaking it. He then picked up their daughter and proceeded to the front door. He used his key to unlock the door, threw his keys into the hallway, and walked down the hall to put their daughter to bed. 8. Mrs. Pedonti testified that she was afraid of Mr. Pedonti after he knocked out the light in the van. She took the house key off his key ring, because she did not want him to be able to get back into the house. She then put the key ring back in the hallway where he had thrown it. 9. Mrs. Pedonti next sat down at the dining room table. Mr. Pedonti emerged from their daughter's bedroom and sat on the couch. She began talking to him about making the marriage work. She told him that he had spent only four hours with his daughter that week, and that he needed to spend more time with them. Mrs. Pedonti testified that during this monologue, her husband “laid his head back and closed his eyes and acted like he was asleep." She moved to sit on the couch and continued to talk. She testified that she did so in a quiet, calm voice, because she had already seen him knock out the light in the van. 10. Mrs. Pedonti testified that Mr. Pedonti suddenly lunged toward her and pushed her down on her back. He placed his left arm across her jaw, holding down her head. His face was red, his expression "contorted." She told him he was hurting her, and asked him to let her up. Mr. Pedonti drew back his right hand and hit her in the left eye with his fist. 11. Mrs. Pedonti testified that she could feel her eye begin to swell immediately, and she begged Mr. Pedonti to let her up so that she could put ice on it. He let her get up, but only after holding her down for a while longer. She walked to the kitchen, but Mr. Pedonti would not allow her to get to the refrigerator. She said something about the police. Mr. Pedonti told her, "Go ahead, call the police," then knocked the phone off the wall, breaking it. He repeatedly said, "I'll lose my job, I'll go to jail." Mrs. Pedonti testified that he left the house soon thereafter. 12. Mrs. Pedonti testified that she did not immediately call the police because she still loved her husband and did not want him to lose his job or go to jail. She did not see her husband on Saturday after he left the house, but she did speak to him by telephone on Sunday, November 23. She told him that she could not leave the house because of her eye, and asked him to buy some milk and take their daughter to Sunday school. Mr. Pedonti sent a family friend, Wayne Canady, to the family residence to do what he could for her. 13. Mrs. Pedonti went to school on Monday morning. She worked in a portable classroom and avoided being seen by staff and fellow teachers. Her eighth grade students saw her and asked what happened to her eye. She told them that her husband hit her. She did not work on Tuesday or Wednesday. Thursday was Thanksgiving, a holiday. 14. Mrs. Pedonti testified that on Tuesday, November 24, her parents saw her condition and urged her to go to the police. The next day, she decided that she would call the police. She testified that she concluded that she had to take a stand and stop this "foolishness." She did not want her daughter to grow up in such an environment. On Friday, November 27, Mrs. Pedonti made her report to the police. 15. Mr. Pedonti testified that on Friday, November 21, 1997, he spoke to his wife in the afternoon and told her that he would not be over that evening. He stated that he had been spending a lot of time at his wife's house, neglecting his own residence, and needed to spend the evening putting his own house in order. He also stated that he needed to move a car to someone else's house that evening. 16. Mr. Pedonti testified that he delivered the car and was driving home at around 3:30 a.m. on Saturday morning. He stopped at a 24-hour Winn-Dixie, shopped, then drove to his house. Upon arriving home at about 4:30 a.m., he found there were numerous telephone messages from his wife. He turned the machine off after the third or fourth message, because the messages were "crazy." His wife knew what he was going to do that evening, and had no reason to call repeatedly questioning his whereabouts. 17. Mr. Pedonti testified that there was a knock on his door at about 5:30 a.m. His wife was standing in the doorway, "hysterical" and saying things that made no sense. He asked her where their daughter was, and Mrs. Pedonti replied that she was asleep in the van. Mr. Pedonti testified that he did not live in a good neighborhood, and did not want his daughter there. He told his wife to drive home, and he would follow her. Mrs. Pedonti drove off, and Mr. Pedonti locked up the house and followed a few minutes later. 18. Mr. Pedonti testified that when he arrived at the family residence, his wife's van was parked in the front yard with the dome lights on. He stated the light was so bright it looked like a theater. He went to van and saw his wife slumped over the steering wheel, apparently asleep. He tried to rouse her by tapping on the driver's side window, but she did not move. He walked around to the passenger side and opened the sliding door. He reached in and shook his wife's shoulder to wake her. He told her to wake up and turn off the light, and said he would take their daughter into the house. Mr. Pedonti testified that his wife still didn't respond. He reached up to the dome light, trying to find a switch. When he touched the light, the plastic dome fell off and the bulb fell out. 19. Mr. Pedonti testified that he then picked up his daughter and carried her to the front door. He pulled the keys out of his pocket, used his house key to open the front door, then put the keys back into his pocket. He put his daughter to bed, then came out of the bedroom and sat on the couch in the living room. 20. Mr. Pedonti testified that his wife began to harangue him about their daughter. Mrs. Pedonti told him that she needed 10 to get the child out of the house, that she could no longer take care of the child and that Mr. Pedonti needed to take her. Mr. Pedonti testified that her conversation "made no sense to me," but that he calmly listened. He stated that he dozed off, but that Mrs. Pedonti woke him by coming over to the couch, yelling and screaming. After he woke up, she returned to her seat at the dining room table. 21. Mr. Pedonti testified that his wife then shifted the subject to his spending more time with her and their daughter. He "didn't know what she was talking about," because he had gone to the family home every evening after work that week. Mr. Pedonti testified that he sat quietly listening, until he again fell asleep. He testified that a "noise or something" startled him awake. He opened his eyes, but could not see farther than his hands. He put his hands up, brushed his nose, and saw blood on his hands. He stood up quickly and bumped against his wife, who was hovering over him. He asked her what happened. She replied, "You hit me." He pointed out the blood on his hands and asked her if she had hit him, but she kept repeating that he had hit her. Mr. Pedonti said to himself, "This is crazy," and walked out of the house. 22. Mr. Pedonti testified that as he stood outside the front door, he stopped and asked himself what had just happened. He decided to go back in. He took the keys out of his pocket, but saw that he no longer had a key to the house. He surmised 11 that his wife must have taken the key ring from his pocket and removed the house key while he was asleep. He called out to Mrs. Pedonti to open the door, which she did. They quarreled for a few moments, then Mr. Pedonti left the house and drove back to his own residence. 23. Mr. Pedonti testified that his wife called him two or three times on Saturday, and that on Sunday she drove to his house and demanded that he repair the dome light in her van. The situation deteriorated into another loud quarrel, an@ Mr. Pedonti went inside and called the police. Mrs. Pedonti left before the police officers arrived. 24. Mr. Pedonti testified that his wife returned with their daughter at about five p.m. that evening, but that he would not answer the door. He called the police and waited inside for them to arrive. Mr. Pedonti testified that an officer arrived and advised Mrs. Pedonti to leave. After some argument, she did leave. Mr. Pedonti testified that he then spoke with the police officer, who advised him to file for an injunction against his wife to keep her away. 25. Mrs. Pedonti's version of the essential events is more believable and is credited. The photographs taken of Mrs. Pedonti by the police at the time of her complaint show that her left eye was bruised and discolored. Mr. Pedonti's only explanation of his wife's injury was that he might have 12 accidentally poked her in the eye when he jumped to his feet and bumped her. 26. Mr. Pedonti's friend, Wayne Canady, testified that he saw only some redness in the corner of Mrs. Pedonti's eye when he visited her at Mr. Pedonti's request on Sunday. However, Mr. Canady's testimony simply parroted Mr. Pedonti's story. In describing her injury, Mr. Canady testified that Mrs. Pedonti "looked like a finger had accidentally been poked in her eye." He did not explain how he could tell from looking at Mrs. Pedonti's eye that it had been injured "accidentally." 27. Mr. Canady admitted that he did not ask Mrs. Pedonti what had happened, because Mr. Pedonti had already told him. Mr. Canady stated that Mrs. Pedonti volunteered that her husband had "lost it" and "knocked her around." Mr. Canady admitted that Mr. Pedonti had requested that he stop by and ask if he could buy some groceries for Mrs. Pedonti. Mr. Canady stated that the reason Mrs. Pedonti could not go shopping for herself had nothing to do with her physical condition. Rather, he testified that it was difficult for Mrs. Pedonti to go out because she had a "small baby" to care for. The Pedontis' daughter was three years old at the time of the incident. 28. Mr. Canady also testified that Mr. Pedonti had a "claw mark" on his nose and "some cuts or bruises." Mr. Pedonti testified that the altercation left no marks on him. In summary, 13 Mr. Canady's efforts to corroborate Mr. Pedonti's testimony cannot be credited. 29. Mr. Pedonti was subsequently arrested on a charge of domestic violence. The arrest took place on the school campus. victor Fernandez, who was the assistant principal for discipline at W. G. Pierce Middle School, testified that he worked with the arresting officer to minimize the impact of the arrest on the school. The arrest took place at the end of the school day, when most of the students were on buses preparing to depart the campus. Mr. Fernandez testified that some students were nearby, outside the school grounds, but he could not be certain they saw the arrest. In the days following the arrest, Mr. Fernandez had the feeling that students knew "something was going on with Mr. Pedonti," but no student ever spoke to Mr. Fernandez about the matter. 30. Mr. Fernandez indicated that the arrest was not generally known at the school, but that several people close to Mr. Pedonti knew about the situation and became "uncomfortable." Mr. Fernandez stated that no student ever expressed an unwillingness to go into Mr. Pedonti's classroom, and no colleague ever expressed an unwillingness to work with him. To the contrary, Mr. Pedonti's colleagues were concerned about his situation and deteriorating mental condition and were willing to help him. 14 31. Mr. Fernandez testified that the arrest had a "big impact" on Mr. Pedonti's behavior. Mr. Pedonti was uncomfortable about returning to the school because of his fears as what students and faculty would think of him. He lost interest in his work. Mr. Fernandez described him as "totally disoriented, distressed, confused." 32. Mr. Fernandez also noted that Mr. Pedonti's job performance declined after his arrest. Mr. Fernandez described Mr. Pedonti as "an outstanding, dynamic teacher" who was very popular with his students. After the arrest, Mr.Pedonti began coming to school late and often did not prepare lesson plans. Mr. Fernandez eventually sent him to school district headquarters for counseling. 33. Frank Johnson is an administrative resource teacher with the Hillsborough County school district. He taught with Mr. Pedonti for more than twenty years and testified that Mr. Pedonti had been one of the best industrial arts teachers in the county, but that his performance began to fall off in 1997 because of his separation and divorce. 34. In September 1999, Mr. Johnson visited Mr. Pedonti's classroom at the request of Mr. Fernandez, who was now the principal of W. G. Pierce Middle School. Mr. Fernandez was concerned with the poor quality of instruction and wanted Mr. Johnson to assist Mr. Pedonti in improving his classroom Management and teaching skills. Mr. Johnson found the classroom 15 and storage rooms in disarray. Mr. Pedonti could not provide him with a lesson plan. Mr. Johnson asked Mr. Pedonti what his school administration could do to help him. Mr. Pedonti replied that nothing more could be done, and that he could no longer perform his teaching duties. He felt that he was no longer in control of his life and was unable to make plans for the future. Mr. Pedonti told Mr. Johnson that the only reason he was still teaching was that the school system was short of substitutes, and even expressed some desire to surrender his teaching certificate. 35. Mr. Pedonti admitted that his divorce and arrest affected his job performance, along with every other aspect of his life. He expressed a belief that his wife had conspired with the counselors at The Spring of Tampa Bay, where he completed domestic violence counseling, to trick him into making incriminating statements during his initial evaluation at that facility. He also stated his suspicion that the events of November 22, 1997, were planned and orchestrated by his wife, apparently to set him up for the domestic violence allegations that followed. 36. Mr. Pedonti's case went to trial on February 4, 1999. The court withheld adjudication and sentenced him to 26 weeks of domestic violence counseling and twelve months' probation. Mr. Pedonti has completed those obligations. 37. Mr. Pedonti has continued to teach in the Hillsborough County school system since the incident. The Hillsborough County 16 public schools took no disciplinary action against Mr. Pedonti, though it was aware of his arrest and the pending criminal proceedings. Linda Kipley, general director of professional standards for Hillsborough County public schools, testified that the school district's response was to assist Mr. Pedonti in working through his personal circumstances. Ms. Kipley also testified that it is not the district's policy to retain an employee whose effectiveness has been seriously reduced. 38. The evidence presented is sufficient to establish that Mr. Pedonti committed an act of moral turpitude when he held his wife down on the couch by pressing his left arm against her head with such force that she feared he was breaking her jaw, then punched her in the left eye with his fist. This was an act of serious misconduct in flagrant disregard of society's condemnation of violence by men against women. 39. Although the evidence establishes that Mr. Pedonti committed an act of moral turpitude, the only evidence offered regarding any notoriety arising from the November 1997 incident and from Mr. Pedonti's subsequent arrest and trial on the charge of domestic violence was the testimony of Mr. Fernandez. Mr. Fernandez was uncertain whether any students saw the arrest, and had no direct knowledge of adverse student reaction to the situation. Mr. Fernandez noted that several teachers knew about the incident and were concerned, but their concern in the nature of solicitude for Mr. Pedonti's emotional welfare. There was no 17 evidence to prove that Mr. Pedonti's conduct was sufficiently notorious to cast him or the education profession into public disgrace or disrespect or to impair Mr. Pedonti's service in the community. 40. There was persuasive evidence presented to establish that Mr. Pedonti's performance as a teacher and an employee of the Hillsborough County public schools was diminished as a result of the November 1997 incident and its aftermath. Both Mr. Fernandez and Mr. Johnson testified that Mr.Pedonti's job performance deteriorated drastically after his arrest, such that the school district felt obliged to step in and assist him in organizing his classroom. Mr. Pedonti was often late for work. He was not completing his lesson plans. His entire demeanor changed, to the point where colleagues who were close to him expressed their concern for his welfare. Mr. Pedonti himself testified that his job performance was affected, and he told Mr. Johnson that he felt his life was out of control and he was contemplating the surrender of his teaching certificate.
Conclusions For Petitioner: Robert E. Sickles, Esquire Broad and Cassel 100 North Tampa Street Suite 3500 Tampa, Florida 33602-3310 For Respondent: Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a final order placing John H. Pedonti, Jr., on probation for a period of two years, and requiring Mr. Pedonti to undergo a full psychological evaluation to ensure that he is fully capable of performing his assigned duties, prior to Mr. Pedonti's being allowed to return to the classroom. DONE AND ENTERED this /2Uh aay of July, 2001, in Tallahassee, Leon County, Florida. : prnrean2oC0r~ [AWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this /27K day of July, 2001. 26
The Issue The issue in this cause is whether the Petitioner Duval County School Board should dismiss the Respondent for professional incompetence pursuant to the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941) as amended.
Findings Of Fact The Petitioner is the Duval County School Board. The Respondent, Bobby Palmore, has been an employee of the Petitioner since the 1992-93 school year. The Respondent is a tenured teacher assigned as a guidance counselor. During the 1997-98 school year, the Respondent was a guidance counselor at North Shore Elementary School. The Principal at the school in 1997-98 was Larry Davis. Concerns regarding the Respondent’s work performance at North Shore were raised early in the school year regarding his participation with Intervention Teams. An Intervention Team is formed to assist a guidance counselor with a particular student. The team meets when requested by the guidance counselor. Notwithstanding that the Intervention Team convened at the Respondent’s request, he missed the meeting scheduled for September 29, 1997. His erratic attendance at other Intervention Team meetings was of concern to the Assistant Principal, Martha Johnson, and the Principal. Ms. Johnson spoke with the Respondent about this, and Mr. Davis wrote the Respondent about his attendance at these meetings. Respondent’s attendance did not improve. The Respondent’s erratic attendance at Intervention Team Meetings was unsatisfactory performance of his duties and showed a lack of understanding of the subject matter. The Respondent repeatedly interrupted classroom teachers with unannounced and unscheduled calls and visits to their classrooms. This disrupted their classes, and they complained to administrators about Respondent’s conduct. These interruptions were frequently to obtain information regarding students who were being staffed for one reason or another, an activity coordinated by the guidance counselor. The Respondent was officially counseled about these interruptions by Ms. Johnson, but continued to interrupt classes and cause disruptions. This was unsatisfactory job performance and showed the Respondent’s failure to follow directions, plan his activities effectively, and manage his time well. These are considerations in Competency 2 of the Evaluation criteria. The Respondent was asked by Ms. Johnson to make a sign to direct parents and others to a December 12, 1997, Child Study Team (CST) meeting. He did not do so. This also showed the Respondent’s inability to follow direction. On January 13, 1998, the Respondent told Deborah Nurse, an employee of the school, in a rude and loud voice, that she was not to use the copying machine that was outside his office. Mr. Davis counseled the Respondent in writing regarding his behavior on January 16, 1998. On January 14, 1998, at a CST meeting, Ms. Slaughter asked the Respondent for a cumulative folder on a student. The Respondent had been asked to the meeting because of his lack of cooperation regarding the folder. The Respondent accused Ms. Slaughter of not respecting him in the meeting, and insisted that she ask him again for the folder. The Respondent’s actions were embarrassing to the professionals present at the meeting and showed a lack of professionalism on the part of the Respondent. He was counseled in writing by Ms. Johnson about his conduct. On January 15, 1998, a meeting was held to discuss a student between Ms. Johnson, Mrs. Shabazz, and the Respondent. Mrs. Shabazz indicated that a pertinent document was missing from the student’s folder that could effect his educational program and result in a loss of funding for the school. It was Respondent’s responsibility to maintain the student’s records in the guidance office. Ms. Johnson counseled the Respondent about his responsibilities in maintaining records and their importance to the school. She offered to assist the Respondent in reviewing the cumulative folders prior to their processing. The Respondent was responsible for preparation of materials for and participation in CST meetings on students. The Respondent placed students on the CST agenda without completing the data in their folder. This failure interfered with the proper and timely placement of students, and evidenced an unsatisfactory performance of a basic part of the Respondent’s job. As a result of the complaints about the Respondent’s work and conduct, a Success Plan was developed. This plan outlined areas in which the Respondent was not performing satisfactorily, identified objectives for improving his performance, and strategies to meet the objectives. A team was created to assist the Respondent including Mr. Davis, Ms. Johnson, the Respondent’s supervisor in guidance services, and the professional development facilitator. The Intervention Team had decided that team members should receive a response from the Respondent within three days. This time limit was incorporated in the Respondent’s Success Plan; however, the Respondent did not submit the CST packets within the time limits. In addition, the Respondent’s tone in speaking with the teachers was such that they complained to Ms. Johnson about the Respondent. Ms. Johnson counseled the Respondent about the lateness of his submittals and his interactions which the teachers. The Respondent did not improve his conduct that directly resulted in student’s needs not being met. The Respondent continued to be late to or to miss meetings and scheduled classroom visits. On February 4, 1998, he was late to a classroom visit. He cancelled a classroom visit he had scheduled. He did not follow the weekly calendar of guidance activities as required in his Success Plan. On February 4, 1998, Mr. Davis met with the Respondent to discuss the proper procedures for conducting a CST meeting as a means of assisting the Respondent. On February 6, 1998, Mr. Davis counseled the Respondent about his continued interruption of classes, and the Respondent forgot about a scheduled guidance session and did not attend, until reminded by Ms. Dennis. On February 6, 1998, Ms. Anderson met with the Respondent to discuss the guidance program and to offer assistance to him. She suggested that he use a weekly, hour-by- hour calendar to plan his time and activities. She also counseled with him about using a lesson plan for a small group session to provide a clearly defined objective for the session. Ms. Anderson directed the Respondent to follow-up with her in a week. The Respondent did not follow-up with Ms. Anderson or follow any of her advice. On February 9, 1998, Mr. Davis observed the Respondent conduct a meeting with staff regarding the Florida Writes Test. The Respondent’s conduct of the meeting was unsatisfactory. Issues were left unresolved and staff members were confused about the presentation. Some of the material presented was inconsistent with the information in the manual. Mr. Davis wrote the Respondent about these matters, and referred the Respondent to his Success Plan. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to make to two-scheduled classroom visitations. On February 10, 1998, the Respondent missed a scheduled classroom visitation. The Respondent was not following a weekly calendar of activities, and his performance was unsatisfactory and contrary to the Success Plan. On February 10, 1998, the Respondent attempted to counsel the wrong child about the death of the child’s mother, and was prevented from doing so by the teacher. This reflected poorly on the Respondent’s attention to his duties, and his professionalism. On February 10, 1998, the Respondent was provided a list of counselors at other schools who had agreed to let the Respondent attend classroom guidance or CST meetings at their schools. The Respondent was late and showed a lack of interest while attending a classroom guidance session at Lake Forrest. On February 11, 1998, Mr. Davis observed a CST meeting at North Shore. It was evident that the parents had not received the required seven days' notice of the meeting. The Respondent had not conducted the pre-conferences, and had not coordinated the scheduling with the teachers. The Respondent did not have the proper forms in the cumulative folders, and had not conducted any classroom observations in preparation for the CST meeting. In sum, the Respondent’s performance showed a complete lack of competence and knowledge of his duties as a guidance counselor. On February 11, 1998, the Respondent missed his scheduled classroom guidance visit. On February 12, 1998, the Respondent missed his scheduled classroom guidance visit because he was late in arriving. On February 12, 1998, The Respondent discovered a coding error on the Florida Writes Test. He reported the error to Mr. Davis and accused the teacher of coding the test incorrectly. Davis directed the Respondent to correct the mistake and notify the testing department regarding the possible problem. The Respondent did not correct the test as directed, but placed a note on the box and resealed it to be mailed. The Respondent’s actions violated the testing procedures, and he did not do as he had been directed. On February 17, 1998, Ms. Johnson counseled with the Respondent concerning his failure to respond to student and staff needs. She advised him he was not meeting his Success Plan goals, and students were not receiving services they needed. The Respondent refused to counsel with a developmentally disabled student who had been sent to guidance by his teacher. The proper paper work had been completed for the student to participate in the group counseling session; however, the Respondent refused to allow the student to participate, chasing the student around the room telling him to "get out." The student was confused and embarrassed. Ms. Johnson, who was observing the session, and took charge of the student by having him sit with her, resolved the situation. The Respondent's actions demonstrated a complete lack of understanding of the role of a guidance counselor, sensitivity for students, and ability to conduct a class or counseling session. On March 9, 1998, Mr. Davis completed the Respondent’s Annual Performance Evaluation. The evaluation consisted of eight competency areas. The Respondent received an unsatisfactory rating in three of the competency areas, which constituted an overall unsatisfactory evaluation. The facts as presented at hearing confirm the evaluation, and show that the Respondent was clearly incapable of performing his job duties. He lacked knowledge of his duties or how to perform them. He was insensitive to the students' needs and did not meet them. He did not follow the direction of his Principal and did not maintain a professional relationship with his coworkers and superiors. After receiving this evaluation, the Respondent continued in the same pattern of behaviors. He did not prepare and use a calendar of activities. He continued to provide materials late. He refused to assist a parent obtain the proper papers to enable the parent’s child to enroll in another school. He continued to disturb classes. He failed to notify staff of CST meetings at which they needed to attend. He took seven months to complete the paper work to have one child tested. In fact, there were several students who were awaiting CST processing at the end of the year. The Respondent was treated fairly and provided assistance by the school’s administration. Based upon his unsatisfactory evaluation in 1997-98, the Respondent was administratively transferred to J.E.B. Stuart Middle School the following year for an additional year of observation of in-service training. Carol Daniels is the Principal of Stuart Middle School. She met with the Respondent and advised him that he was starting with a clean slate at her school. School Board Policy required that Ms. Daniels confer privately with the Respondent and develop a Success Plan. She met with the Respondent on August 24, 1998. The Success Plan outlined goals and objectives to improve the Respondent’s performance as a guidance counselor. A support team was created to assist him. Soon after the school year began, Ms. Daniels counseled the Respondent about the proper method to request student records. She arranged for him to attend New Counselor Training on or about August 31, 1998. The Respondent was negative and adversarial about being requested to attend the training. He officially complained about the request, but upon review the Regional Superintendent determined that Ms. Daniels’ request was not arbitrary and was appropriate. The Respondent was counseled by Mr. Gilmore, the Vice Principal, on the need to process gifted students under the ESE program. He had failed to process several of these students, and he was given a deadline for processing these students. On September 8, 1998, the Respondent did not exit the building during a fire drill. Ms. Daniels counseled him in writing about the need for everyone to evacuate the building during drills. Mr. Gilmore counseled in writing the Respondent about the lack of lead-time in requesting information about students, and his abruptness and tone in making requests. On October 26, 1998, Linda Bailey requested an ESE/CST Agenda from the Respondent. The Respondent replied he was too busy to provide the information. On October 28, 1998, Ms. Bailey again asked for the information in writing. The Respondent did not provide the information. On October 26, 1998, Ms. Bailey also requested progress reports for the ESE students who would be reevaluated on November 9, 1998. These reports had been used at Stuart Middle School for many years as a best practice strategy. The Respondent advised that he had no intent of providing the progress reports and refused to do so. On October 26, 1998, the Respondent accused the District ESN Admissions Representative of taking ESE forms from his office. His tone and manner were threatening and confrontational. On October 27, 1998, Ms. Daniels notified the Respondent that he would have an evaluation and conference on October 30, 1998, pursuant to district guidelines. On October 28, 1998, Charlotte Robbins, ESE Interventionist, met with the Respondent to discuss three students. It was the Respondent’s responsibility to provide information to Ms. Robbins in a timely manner. The Respondent did not provide Ms. Robbins the necessary information prior to the meeting. The Respondent also invited parents to the meeting without advising Ms. Robbins. On November 2, 1998, Norma Peters, a speech therapist, advised Ms. Daniels that she had requested the Respondent to provide her a list of students to be evaluated two to three weeks before CST meetings. The Respondent told Ms. Peters he would not be able to provide the information as requested, although previous guidance counselors had provided Ms. Peters the names three to four weeks in advance of meetings. Although Ms. Daniels spoke with the Respondent about Ms. Peter’s concern, the Respondent did not provide the information as requested. On November 5, 1998, the two eighth grade counselors met with the Respondent to discuss the need for him to be a team member. They raised the fact that he did not answer the phone, assist parents, or help the guidance clerk when necessary. They also advised him to improve his communication with the ESE teachers, CST members, speech pathologist, and interventionist. A CST meeting was held on November 9, 1998, and only half the parents had been noticed and invited to come to the meeting. The Respondent had been responsible for contacting the parents in compliance with district policies. This failure prevented the CST team from addressing the needs of students. Not only did it potentially deny students services, it frustrated teachers, staff, and parents. On November 24, 1998, the Respondent interrupted class instruction by bringing a parent into the class who had missed an earlier appointment with the teacher. On November 25, 1998, Kathee Cook telephoned the Respondent regarding contacting children for the December 9, 1998, CST meeting. The Respondent refused to contact the parents of the students because ESE procedures required that Ms. Cook contact him seven days prior to the designated date. Ms. Cook reported this to Ms. Daniels, who discussed it with the Respondent, explaining that the requirement was for at least seven days notice. Ms. Daniels advised him that he was responsible for notifying parents for CST meetings, and his position potentially jeopardized notice to the parents as required by district policy. Ms. Daniels directed the Respondent to give the Vice Principal all of the parental notices by December 2, 1998. On December 2, 1998, the Respondent gave Mr. Gilmore ten notice letters; however, he did not provide notices to eleven other parents. The Respondent excused his failure by asserting his interpretation of the seven-day rule. On November 25, 1998, Ms. Daniels advised the Respondent that he had made little improvement in his performance. She discussed with him performance of his duties; and being courteous and respectful to faculty, staff, and parents. The Respondent did not accept the evaluation and was confrontational and adversarial with Ms. Daniels. He refused Ms. Daniels' offer of assistance. On or about January 5, 1999, the Respondent placed seven notice letters to parents in Mr. Gilmore’s box for the January 11, 1999, CST meeting. Not only were the letters late, if intended for the January 11th meeting, but they were addressed to the parents of children being staffed in the January 22, 1999, meeting. The Respondent failed to discontinue ESE services to a student contrary to the parent’s request on three separate occasions, to include at least one request in writing. The Respondent’s failure resulted in the matter being re-assigned to the chair of the guidance department to discontinue the services in accordance with the parent’s wishes. The Respondent left the campus without following the procedures for leaving early. These requirements had been explained during orientation and were in the teachers’ handbook. Ms. Daniels had to notify the Respondent in writing of his oversight. On January 25, 1999, Ms. Daniels notified the Respondent pursuant to the collective bargaining that his work performance was unsatisfactory. He was advised that his performance in Competencies 1, 2, 4, 8 and 9 needed improvement by March 15, 1999. On February 2, 1999, the Respondent was notified that this memorandum would be placed in his personnel file. The Respondent met with parents who were not enrolled in Stuart Middle School during the middle of the school day. Ms. Daniels advised him in writing on February 11, 1999, that this was inappropriate, and he should limit meeting to parents or students enrolled or engaged in enrolling at Stuart. On March 10, 1999, the Respondent made a presentation to an ESE class. His Success Plan required him to schedule presentations during Advisor/Advisee time period. The Respondent’s presentation was arbitrary and he did not seek assistance from his support team. On March 11, 1999, Ms. Daniels completed the Respondent’s annual evaluation. The evaluation addressed nine competency areas. Th Respondent received an unsatisfactory in five of the nine areas, which constituted an overall unsatisfactory evaluation. The Respondent’s performance in Competency 1 (ability to plan and deliver instruction), Competency 2 (demonstrates knowledge of subject matter), Competency 4 (shows sensitivity to student needs by maintaining a positive school climate), Competency 8 (demonstrates a commitment to professional growth), and Competency 9 (shows evidence of professional characteristics) was unsatisfactory. Not only was his performance unsatisfactory, he continued to be unwilling to accept support and assistance. He failed to comply with many areas of his Success Plan and failed to perform his duties. On March 17, 1999, the Respondent interrupted Mrs. Bascombe’s class. Ms. Daniels counseled the Respondent in writing about class interruptions, and how to handle situations by checking the master schedule and placing notices in teacher mailboxes. On March 23, 1999, Ms. Daniels relieved the Respondent of his responsibilities for ESE students because of his poor performance and its impact on the students' welfare. He had failed to timely notify parents. He had failed to communicate with parents, the staff, faculty and the district. His failures had adversely affected the operations of the ESE program. The Respondent was assigned to handle seventh grade non-exceptional education students. Ms. Daniels had to direct the Respondent in writing to relinquish the ESE forms to his successor. On April 20, 1999, after being relieved of his ESE duties, he met with the mother of an ESE student who was then receiving services from his successor. The Respondent was treated fairly at Stuart Middle School. All of the personnel were ready and willing to provide him assistance. He was negative, and refused to co-operate or perform his duties as directed. On May 19, 1999, the Respondent was notified by the Superintendent that he was charged with professional incompetence. He was advised that he would be discharged from the Duval County School System if the charge was sustained by the School Board. He was advised of his right to request a hearing within two days of receipt of the letter dated May 19, 1999. On June 15, 1999, Ms. Daniels provided John Heavner, Director of Professional Standards, written notice that the Respondent had not completed the requirements of his Success Plan. The Respondent requested a formal hearing by letter on July 10, 1999. Notwithstanding that this was late, he was afforded a hearing. On August 5, 1999, the Respondent was notified that he would be suspended without pay effective August 12, 1999. The Respondent was advised that the suspension would be considered at the September 7, 1999, regular meeting of the School Board. The Respondent is charged with incompetence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that: A final order be entered denying the Respondent’s disciplinary appeal and demands set forth in his pleadings, and dismissing the Respondent for incompetence. DONE AND ENTERED this 27th day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 27th day of March, 2000. COPIES FURNISHED: Lashanda R. Johnson, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Bobby G. Palmore 863 Poydras Lane, West Jacksonville, Florida 32218 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 321399-0400
The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
The Issue The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
Findings Of Fact This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984. The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983. Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally, according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year. On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two. In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
The Issue Whether the Respondent should be discharged from her employment as a teacher with the Duval County public school system for professional incompetency as provided in Section 4(e) of the Duval County Teacher Tenure Act?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida to teach in early childhood, biology, science, junior college and driver's education. The Respondent's license to teach is current, in full force and effect and valid through 1998. The Respondent received a bachelor's degree in biology and chemistry from Florida A & M University in 1970 and a master's degree in early childhood education from Antioch College in 1976. The Respondent has been employed as a teacher by the Petitioner since 1977. At all times relevant to this proceeding, the Respondent was employed as a tenured teacher with the Petitioner. Beginning with the 1977-78 school year, the Respondent was assigned to teach at Paxon Senior High School (hereinafter referred to as "Paxon"). The Respondent continued to teach at Paxon through and including the 1984-85 school year. Through the 1983-84 school year the Respondent received satisfactory evaluations of her performance as a teacher from the principal of Paxon. For the 1984-85 school year Mr. Frank Castellano was assigned as the principal of Paxon. This was Mr. Castellano's first year as principal of Paxon. During the 1984-85 school year, the Respondent was observed teaching by Mr. Castellano, Mr. William Jackson, the Vice-Principal of Paxon, and Dr. Jed R. Klein, the Director of Science and Environmental Studies of the Petitioner. On March 15, 1985, the Respondent was rated unsatisfactory on a Mini Evaluation Form by Mr. Castellano. This evaluation was based upon the observations of Mr. Castellano and the other individuals that had observed the Respondent listed in finding of fact 8. On April 26, 1985, the Respondent was again rated unsatisfactory by Mr. Castellano. The form used for this evaluation was a more detailed form which listed 36 factors. Mr. Castellano rated the Respondent "satisfactory" on 13 of the factors, "needs to improve" on 14 of the factors and "unsatisfactory" on 9 of the factors. The unsatisfactory factors were included in the general categories of classroom management and teaching effectiveness. Prior to evaluating the Respondent, Mr. Castellano reviewed the Respondent's previous evaluations back to 1980. Those evaluations do not note similar deficiencies to those noted by Mr. Castellano. The Respondent had had no problems with administration in the past. Although Mr. Castellano did not implement a specific program of remediation for the deficiencies he had observed in the Respondent's teaching performance, efforts were made to assist the Respondent in correcting noted deficiencies. The Respondent was provided with written summaries of the various observations and conferences were held between the Respondent and the individuals observing her. Following the unsatisfactory evaluations by Mr. Castellano, the Respondent was informed by Mr. Castellano that she had the right to transfer to another school for the 1985-86 school year. Mr. Castellano was required to inform the Respondent of this option pursuant to the Duval County Teacher Tenure Act (hereinafter referred to as the "Tenure Act"). Mr. Castellano told the Petitioner that if she did not believe that she would be treated fairly at Paxon, she might want to transfer. Mr. Castellano did not, however, try to convince the Respondent that she should transfer. Mr. Castellano recognized that the decision could only be made by the Respondent and so advised her. Although the Respondent had been at Paxon for 7 years before Mr. Castellano arrived and did not want to leave, she made the decision to request a transfer. The Respondent's decision was based upon her conclusion that she would not receive fair treatment if she remained at Paxon. The Respondent was transferred to Ed White Senior High School (hereinafter referred to as "Ed White"), where she taught during the 1985-86 school year. The Respondent was given no choice as to what school she was transferred to. Such a choice is not mandated by the Tenure Act. Nor is it a policy of the Petitioner to give such a choice. Mr. James Jaxon, the Principal of Ed White, was aware of the Respondent's unsatisfactory evaluation by Mr. Castellano. Mr. Jaxon met with the Respondent on August 23, 1985, in a pre-planning conference. In a memorandum dated August 26, 1985, Mr. Jaxon memorialized the steps that Mr. Jaxon and the Respondent had agreed on August 23, 1985, would be followed to attempt to improve the Respondent's teaching performance. Mr. Jaxon did not request that the Respondent be transferred to Ed White and would not have hired her if she had applied for a position. Mr. Jaxon was not "out to get the Respondent" as suggested by this finding of fact being proposed by the Respondent. Mr. Jaxon attempted to assist the Respondent in improving her teaching skills and provided her with an opportunity to improve her performance. The Respondent was provided in-service training during the 1985-86 school year as required by Section 4(e)(3) of the Tenure Act. The primary source of the Respondent's in-service training was provided by Ms. Gloriden J. Norris. Ms. Norris is a Teacher Education Center Consultant. She is employed by the University of North Florida and not the Petitioner. Mr. Jaxon and Ms. Norris met with the Respondent on September 4, 1985. The Respondent was informed in a memorandum dated September 5, 1985, of the steps that would be followed in assisting the Respondent. During the 1985-86 school year, Ms. Norris observed the Respondent's class on 6 different occasions: September 19, 1985, October 7, 1985, November 26, 1985, December 4, 1985, January 21, 1986 and April 25, 1986. Ms. Norris also conducted approximately 8 to 10 conferences with the Respondent, gave her written materials to assist her in improving her teaching skills and talked to the Respondent on the telephone. In addition to Ms. Norris' observations, the Respondent was observed by Mr. Jaxon (October 13 and 22, 1985, February 3 and 13, 1986 and March 5, 1986), Mr. George Paugh, the Assistant Principal/Student Services at Ed White (September 3, 5 and 26, 1985) and Dr. Klein (March 18, 1986). Written comments concerning most of the observations of the Respondent during the 1985-86 school year were provided to the Respondent. Conferences were also held with the Respondent throughout the school year. The Respondent followed up on some of the suggestions Mr. Jaxon made to her concerning improving her teaching skills and she asked about an in- service workshop. The Respondent did not sufficiently implement recommendations for improvement made to her. Ms. Norris was not able to establish a rapport with the Respondent and therefore her ability to assist the Respondent was diminished. This lack of rapport was a result of the Respondent's attitude toward those who were attempting to assist her in improving her teaching abilities. The Respondent evidenced a belief that she was being treated unfairly and that she had no significant problems as a teacher. This attitude of defensiveness hampered the efforts of Ms. Norris and others to assist the Respondent. After January 21, 1986, Ms. Norris did not check to see if the Respondent had incorporated her suggestions as to the development of a lesson plan. On October 30, 1985, Mr. Jaxon rated the Respondent's performance as unsatisfactory. Mr. Jaxon also rated the Respondent's performance unsatisfactory on March 27, 1986. Respondent's deficiencies were in the areas of classroom management and teaching effectiveness. The following deficiencies concerning the Respondent's classroom management were observed during the school years in question: The Respondent was late to class or in starting class (according to Mr. Jackson, Mr. Castellano, Mr. Jaxon and Ms. Norris); Students were late to class (according to Mr. Jackson, Dr. Klein and Mr. Jaxon); The students were allowed to dismiss themselves (according to Dr. Klein and Ms. Norris); No roll was taken (according to Mr. Jaxon); On numerous occasions students were not paying attention -- they talked, combed their hair and put on makeup, read unrelated materials including magazines and paperback books, daydreamed and slept (according to Mr. Jackson, Mr. Castellano, Dr. Klein, Mr. Paugh and Mr. Jaxon); and Some students did not have their textbooks with them (according to Mr. Jaxon). The following deficiencies concerning the Respondent's teaching effectiveness were observed during the school years in question: The Respondent did not have her lesson plans with her in the classroom (according to Mr. Castellano) or were not followed (according to Dr. Klein); The Respondent failed to check to see if students understood directions (according to Ms. Norris); Only low order questions (those dealing with facts and knowledge) were asked. No high order questions (those requiring reasoning, justification, comparison or analysis) were asked (according to Ms. Norris); The Respondent allowed group responses to questions. She did not call on one student to answer a question. This resulted in incorrect responses not being corrected (according to all those who observed the Respondent); The Respondent did not give summaries or reviews to place lessons in perspective (according to Mr. Jaxon and Dr. Klein); Lag time or dead time was allowed at the end of the classes. This resulted in students having nothing meaningful to do (according to Mr. Paugh and Ms. Norris); and The Respondent was unable to justify grades she had given to some students who complained (according to Mr. Castellano and Mr. Jaxon). The Respondent timely prepared her lesson plans. On the occasions when she did not have her lesson plans in the classroom with her they had been prepared but she did not have them with her. She had turned them in as required on Friday for approval by the principal and they had not yet been returned. The plans were not always approved by the following Monday. The Respondent had been instructed, however, that if the plans had not been approved by the following Monday, the plans were to be picked up before class anyway. The lesson plans prepared by the Respondent were "good" according to Don Price, Dean of Boys of Paxon. Mr. Price so advised Mr. Castellano. Mr. Price also advised Mr. Castellano that the Respondent was a "good teacher." During the school years in question, the Respondent did not demonstrate the ability to plan and teach a meaningful lesson. Ms. Norris attempted to assist the Respondent in demonstrating this ability. Neither Mr. Jaxon nor Ms. Norris ever saw the Respondent teach a lesson in the manner suggested by Ms. Norris. Based upon Dr. Klein's observation of the Respondent during the 1985- 86 school year, the Respondent did not materially improve her abilities from the time he observed her during the 1984-85 school year. Dr. Klein did believe that the Respondent had improved her ability to discipline a little. During the 1984-85 school year, students were taken out of the Respondent's classes to equalize class loads. Except for slightly larger classes during the first part of the 1984-85 school year, there was nothing unusual about the size or makeup of the Respondent's classes. Because students must be scheduled to take certain courses in secondary schools as opposed to one teacher having the same group of students for the entire year, school administrators have less control over the size or composition of classes. During the 1985-86 school year the Respondent taught in an "open school." A large area was divided into several classrooms creating problems with noise and other distractions. These problems were not proved to be sufficient to account for the Respondent's deficiencies as a teacher. Other teachers are able to teach effectively in these circumstances. During the 1985-86 school year the Respondent was assigned to teach marine biology for the first time. The Respondent had never had any courses in marine biology. Marine biology is, however, a subject within the Respondent's areas of certification. The evidence did not prove that the additional effort required of the Respondent in teaching marine biology was the cause of the Respondent's deficiencies. During the 1984-85 and 1985-86 school years the Petitioner provided the Respondent with detailed statements concerning her deficiencies, as required by Section 4(e)(1) of the Act. Most of the 30 exhibits offered by the Petitioner are letters or memoranda written to the Respondent in an effort to inform the Respondent of her perceived deficiencies and to offer suggestions for improvement. The Respondent responded to most of these documents in writing. By certified letter dated May 16, 1986, Herb A. Sang, the Superintendent of Duval County Public Schools, brought charges against the Respondent seeking her discharge for professional incompetency during the 1984- 85 and 1985-86 school years. The Respondent was informed of her right to a hearing pursuant to Chapter 120, Florida Statutes, as required by Section 4(e)(4) of the Tenure Act. The Respondent was given the right to a speedy and public hearing, she was informed of the nature and cause of the accusations against her, she was confronted with accusing witnesses, she was allowed to subpoena witnesses and documents and she had the assistance of counsel in compliance with Section 4(e)(5) of the Tenure Act. No definition of "professional incompetency" is provided in the Tenure Act.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be dismissed as a tenured teacher within the Duval County public school system, effective immediately. DONE and ORDERED this 10th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3564 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection RO 1 and 4. RO 4. 3 RO 9-10, 31 and 42. 4 RO 45. Conclusion of law. RO 10 and 31. 7 RO 32. 8 RO 33. 9 RO 20. 10 RO 21-22. RO 24 and 28. Not supported by the weight of the evidence. Not a proposed finding of fact. 14 RO 38. 15 RO 39. 16 RO 40. 17 RO 26 and 41. 18 RO 13, 15 and 17. 19 RO 43-44. 20 RO 44. RESPONDENT'S PROPOSED FINDINGS OF FACT: 1 RO 3. 2 RO 1-2. 3 RO 4. 4 RO 5. 5 RO 6. 6 RO 7. 7 RO 9-10. 8 RO 8. 9 RO 33. 10 RO 34. 11 RO 35. 12 Hereby accepted. 13 RO 11. 14 RO 12. 15 RO 13-14. 16 RO 11 and 15. 17 RO 15. 18 RO 16 and 18. 19 RO 23. 20 RO 24. 21 Irrelevant. 22 RO 24 and 26. 23 RO 29-30. 24 RO 25 and 35. 25 RO 36. 26 RO 19. 27 Mr. Jaxon did testify that he could find deficiencies in nearly any classroom teacher. He also testified thatit would be unusual for a large numberof teachers to suddenly become incompetent. 28 RO 37. Hereby accepted. The first sentence is hereby accepted. The second sentence is rejected as not supported by the weight of the evidence. 31-33 Irrelevant or not supported by the weight of the evidence. 34 RO 41. 35 RO 27. COPIES FURNISHED: Mr. Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Gary E. Eckstine, Esquire Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Phil J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 30, 1974. (Hearing Officer's Exhibit 1). The hearing in this cause was scheduled by notice dated April 18, 1975. (Hearing Officer's Exhibits 2, 3). 3, The Suwannee County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 4). The United Teachers of Suwannee is an organization which is seeking to represent employees of the Public Employer concerning working conditions, including wages, hours, and terms of employment. The United Teachers of Suwannee was formed through a merger of two organizations, one of which had previously entered into a collective bargaining agreement with the Public Employer prior to the adoption of the Public Employees Relations Act. There is no contractual bar to the holding of an election in this case. (Stipulation TR 7, 8). There is no bargaining history under the Public Employees Relations Act which affects this matter. (Stipulation TR 8). Requests for recognition as the exclusive representative of persons in the unit described in the Petition, and the Public Employer's response to the requests are set out in correspondence which has been received in evidence as Joint Exhibits 1, 2, 3, and 4. Petitioner clearly requested recognition. The Public Employer did not comply with requests for meetings as promptly as requested by Petitioner; however, the request for recognition was not explicitly denied. PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 5). The Public Employer contends that Petitioner is not duly registered. The PERC registration file, PERC No. 8H-OR-744-1034, was received in evidence. The Public Employer sought to present the testimony of certain PERC officials with respect to its contention; however, Petitions to Enforce Subpoenas of these individuals were denied. 9, PERC has previously determined that the Petitioner filed the requisite Showing of Interest with it's Petition. (Hearing Officer's Exhibit 4). The Public Employer sought to offer evidence that the requisite Showing of Interest had not been presented to PERC; however, no direct evidence in support of the Public Employer's position was presented. The parties agreed that the unit designation set forth in the Petition is appropriate, except that the Public Employer would exclude guidance counselors, occupational specialists, and the school psychologist from the unit. Petitioner would include these persons within the unit. The Public Employer employs five guidance counselors. One guidance counselor is employed at Branford High School, one at the Vocational/Technical School, one at the Suwannee Middle School, and two at Suwannee High School. Guidance counselors are charged generally with responsibility for counseling students and assisting them in understanding the school and it's environment, in understanding themselves in relation to others, in understanding their progress in relation to their abilities and limitations, and in understanding themselves in relation to education and vocational goals. Guidance counselors assemble and interpret information about students, encourage and participate in case conferences with parents and/or teachers, participate in school standardized testing programs, and distribute occupational and vocational material to pupils. In addition to these functions, which are generally associated with the position of guidance counselor, guidance counselors employed by the Public Employer perform additional functions which are probably unique to Suwannee County. Indeed, the functions performed by guidance counselors within Suwannee County vary from school to school and from counselor to counselor. The broad range of duties performed by a guidance counselor in Suwannee County will depend to a great extent upon the personality of the individual counselor and his or her relationship with the school principal. All guidance counselors within the Suwannee County School system have Masters Degrees. It is necessary for a guidance counselor to have a casters Degree in order to be certified as a guidance counselor. Although a good number of teachers within the school system have Masters Degrees, this is not a requirement. Guidance counselors are certified in a different category than are teachers. Guidance counselors have the same base pay as teachers. A beginning guidance counselor would receive the same pay as a beginning teacher with a Masters Degree. Guidance counselors have the same contract as instructional personnel. No guidance counselors employed by the Public Employer perform instructional duties. Guidance counselors receive mail at the schools in the same manner as instructional personnel, share the teachers' lounge, and eat lunch in the school cafeteria with instructional personnel. All guidance counselors have offices. Many teachers also have offices, but all teachers do not have offices. Teachers are scheduled for five instructional work periods per day and one planning period. Guidance counselors work six periods per day without any planning period. Teachers are generally hired on a ten-month contract basis, while guidance counselors are hired on a twelve-month basis. Students frequently relate complaints with respect to their teachers to guidance counselors. The guidance counselors who testified at the hearing each handled these complaints in a different manner. Among the actions that a guidance counselor might take upon hearing a number of complaints about a teacher are to counsel with the teacher, or to inform the principal. Guidance counselors are responsible for assigning new students to classes. In making these assignments guidance counselors will consider class sizes and the personality of the teacher and the student. Guidance counselors can make an assignment despite objections of a teacher. Guidance counselors periodically meet as a group without any teachers present. These meetings might be called guidance counselor meetings, communications meetings, or policy meetings. Guidance counselors occasionally attend meetings with the superintendent and his staff and principals. Policy matters which affect the entire school system are discussed at these meetings, and decisions are made based upon these discussions. A new diploma policy was recently adopted within the school system as a result of such meetings. Guidance counselors do not have the power to hire, fire, suspend or discipline teachers or other instructional personnel. Henry Clay Hooter is the guidance counselor at the Vocational/Technical School. In addition to the duties discussed above, Mr. Hooter serves as the school's Assistant Principal. He has served as Acting Principal on several occasions. On one occasion while serving as Assistant Principal, Mr. Hooter was placed in the position of preparing the Principal's School Budget. In the absence of the principal Mr. Hooter has been called upon to sign leaves of absence for teachers. In the absence of the Principal Mr. Hooter is generally responsible for maintaining order at his school. Because he serves as Assistant Principal, Mr. Hooter has more contact with the Principal than teachers have. Lonnie Bob Hurst is one of the guidance counselors at Suwannee High School. In addition to the general duties and responsibilities set outs above, Ms. Hurst participates in preparing the master school schedule. A teacher's entire workday is set out in the master school schedule. Decisions made in preparing this schedule will determine whether a teacher will have advanced, medium, or slow courses, when the courses will be taught, when the teacher will have a free period, and when the teacher will take lunch. The master school schedule is ultimately adopted by the Principal. Both the Principal and the Assistant Principal work on the schedule along with Ms. Hurst. Ms. Hurst makes recommendations respecting courses that should be offered at Suwannee High School. Her recommendations are generally followed. The Principal at Suwannee High School frequently meets with the school's two guidance counselors and the Assistant Principal to discuss scheduling, and other policy matters. Guidance counselors at Suwannee High School play an active role in determining which courses will be offered, and which teachers will teach the courses. Oscar Munch is the guidance counselor at Branford High School. Mr. Munch acts as Assistant Principal in the absence of the Assistant Principal. Mr. Munch was previously charged with the responsibility for drafting the master schedule, but the Assistant Principal now performs this function. Ms. Virginia Alford is the guidance counselor at Suwannee Middle School. The Principal at Suwannee Middle School, Mr. John Cade, relies upon Ms. Alford to perform numerous functions beyond those generally associated with the position of guidance counselor, and the duties and responsibilities discussed generally above. Mr. Cade has delegated the responsibility for developing the master school schedule to Ms. Alford. Mr. Cade has ultimate responsibility for approving the schedule, but he generally follows the recommendations of Ms. Alford. The guidance counselor at Suwannee Middle School is responsible for assigning students to teachers. In making these assignments the guidance counselor is expected to evaluate the student and the teacher. Mr. Cade relies upon Ms. Alford in preparing his evaluations of teachers. Ms. Alford does not fill out any formal evaluation form; however, Ms. Alford's observations respecting student complaints and the teacher's utilization of student files are solicited by Mr. Cade, and are used by him in rendering evaluations of teachers. Teachers make suggestions to Mr. Cade respecting the budget. Ms. Alford actually assists Mr. Cade in preparing the budget. She attends budget meetings with him, and is expected to give advice to Mr. Cade respecting overall school needs. Mr. Cade meets very frequently, approximately two times per week with his Assistant Principal and his guidance counselor. The guidance counselor's name is on the school stationery. Mr. Cade frequently takes his guidance counselor to meetings with the Superintendent and the Superintendent's staff. Limited negotiations were conducted between the Public Employer and a labor organization which ultimately merged with the Petitioner in this case. Guidance counselors, occupational specialists, and school psychologists did not participate in these negotiations on behalf of the school board. It is now the apparent intent of the Public Employer to place such staff members as guidance counselors, occupational specialists and school psychologists on the collective bargaining negotiating team on a rotating basis. The purpose this placement would be to have the persons who will ultimately have responsibility for administering an agreement participate in the negotiations. There are two occupational specialists employed by the Public Employer. The occupational specialists are not assigned to a particular school. Occupational specialists are charged generally with placing students who are leaving the school system in positions in business and industry. The occupational specialists follow up on students after graduation. The occupational specialists answer directly to the Director of Vocational Education. They prepare their own plan of operation and have a separate budget. Occupational specialists made specific recommendations to the Superintendent regarding items in their budgets. Occupational specialists perform no instructional duties. There is no requirement that an occupational specialist have a college degree. The school psychologist is a member of the Superintendent's staff. The school psychologist answers directly to the Superintendent. He has primary responsibility for the testing and placement of students within the school district. The school psychologist plays a major role in placement of students within the school system. He has a separate office and his own secretary. The school psychologist holds a "specialist degree", which is a level above a Masters Degree. The school psychologist plays a role in formulating school policy respecting special education programs. The school psychologist has virtually total discretion in administering budgetary funds which are allocated to him. ENTERED this 25 day of November, 1975 in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
Findings Of Fact At all times pertinent hereto, Respondent, William B. Bailey, was a certified teacher in Florida employed by the Broward County School System (BCSS). He has been a teacher for 22 years and has taught at Markham Elementary School, (Markham) for 18 or 19 years. Respondent has generally had a good rapport with young boys. He has an adopted 26 year old son who was recently promoted to Captain in the U.S. Air Force. Allean Jones has known Respondent and his parents for many years. Several years ago she became the guardian of her grandson, Earl Edwards, who, for a long time, had disciplinary and behavior problems at home and at school due, at least in part, to his difficult home life with his natural mother who bore him at age 14. For some time, several years ago, Earl Edwards was a student at Markham of Respondent who developed a good relationship with him. While the student-teacher relationship existed, on numerous occasions, Earl went to Respondent's home where he swam, ate, played, and spent nights, always with Mrs. Jones's permission. She feels Respondent, who bought Earl clothes and paid his dental bills, is a good influence on him and she has offered to let Earl stay with him on a permanent basis. At no time did she object to Respondent's relationship with her grandson, and felt it to be beneficial rather than detrimental to his best interests. Unfortunately, Earl has left school since he graduated from Markham and she does not know where he is now. Mr. William Bell, who was principal at Markham at the time, heard about Respondent's relationship with Earl from two staff members and, without any investigation of the situation and without checking with Earl or his grandmother, concluded that since Respondent was an unmarried male, his off- campus contacts with a young male student were inappropriate and he asked Respondent to cease contact with his student off-campus or before or after school and on weekends. Had Respondent been married, Mr. Bell's reaction might well have been different. Mr. Bell believes that the Teacher Code of Ethics conflicts with off-campus contacts in such a manner as would interfere with teacher effectiveness, and parental approval would make no difference. This request to cease contact with Earl Edwards, in 1980 or 1981, somehow became a part of Respondent's record in the BCSS. No copy of any written request was produced by Petitioner, however, nor was any record reflecting it. Both Bell and Dr. Thomas Johnson, Associate Superintendent for Human Resources in the system, recall the incident, though. When requested to cease off-campus contacts with Earl, Respondent complied. In the Spring of 1986, the new principal, Ms. Dorothy Wooten, was approached by a teacher, Ms. Denise Wright, and the school counselor, who requested that she tell Respondent to leave some of her students alone and stop socializing with them when they should be in Ms. Wright's class. The students in question were Sedaniel Allen and Willie McCloud, who, apparently, would leave her class without permission and, she believed, go to visit with Respondent in his planning area. She believed this is where they went because, though she did not check on them to see where they were going, they told her that's where they were going when they asked her for permission to leave. She periodically gave it and therefore assumed that they would visit Respondent when they left without permission. Ms. Wooten did not investigate the situation herself, but, as a result of Ms. Wright's request, called Respondent in and spoke with him about the situation in the presence of the students in question and both complainants. Respondent seemed as though he would comply and she took no formal action. It appears, however, that the situation continued and a short while late, she talked with Respondent again about the same students and again he seemed to agree. It was after the second meeting that she wrote a memo summarizing the situation. After this second conference, she spoke with Ms. Linda Gaines, Sedaniel's mother, who indicated that Sedaniel had spent the night at Respondent's home without her permission or knowledge, and neither Sedaniel nor Respondent had called her to let her know he was there. When Sedaniel went to Respondent's home a second time without her permission, Sedaniel's step-father went to Respondent's home and got him. Further discussion of these incidents is found in paragraph 15 et seq. infra. After Ms. Wooten received this information from Sedaniel's mother, she wrote Respondent a letter on May 1, 1986 recounting the substance of the interview with Ms. Gaines and advised him she was referring the matter to the Internal Affairs Division, (IA), of BCSS. A week later, she wrote another letter to Respondent requesting that he restrict his contact with Sedaniel and Willie to the scheduled class time and "strongly advised" him to have no other contact with them. In a subsequent meeting held with Ms. Wooten, the students' parents, and Mr. Joseph Viens, an investigator with IA, at the investigator's suggestion, at least some of the parents indicated they did not want the Respondent to have any off-campus or extra-class contact with their children. At this point, Respondent indicated he would talk with his attorney before discussing the matter any further. Respondent took that position only after the investigator accusatorily pointed his finger at him and called him a faggot. Respondent strongly denies being a homosexual and there is no evidence to suggest otherwise. By the same token, Respondent's recounting of the investigator's public accusation was not contested either and is found to have occurred. Having done all she felt was required by reporting the matter to IA and by advising Respondent in writing to refrain from further off-campus contact, Ms. Wooten felt she was out of the matter until one day in October, 1986 when she noticed Sedaniel and Willie loitering after school and not going home. When she looked into it, she found Willie sitting in Respondent's classroom with Respondent and another person. She called both Respondent and Willie to her office where she recalled her instructions to Respondent to avoid extra-class period contacts with these boys and again stated her requests. In response, Respondent stated Willie had been injured and he was going to take him home. Willie confirmed he had been injured one day around this time in an afternoon ball game and the following day, aggravated the injury at recess. When he reported this to his teacher, Mr. Collins, this individual did not consider it serious and refused to let Willie do anything about it. It got worse during the day and swelled up and after school, Willie went to Respondent's room where he saw Mrs. Ruise, Respondent's team teacher. Respondent was at a meeting away from the area. Mrs. Ruise saw that Willie's ankle was injured, but did nothing for him and when staff departure time came, left the school locking the classroom door and leaving Willie out in the hall. When Respondent came back to his classroom somewhat later, he found Willie curled up on the hall floor outside the room crying. Willie's ankle looked bad but Respondent nonetheless questioned him in a forceful tone to find out what had happened. Willie said he needed a ride home. After some serious questioning and initial refusals, Respondent ultimately relented and agreed to take Willie home even though he knew he was not supposed to have contact with him. He saw Willie at school the next day and attempted to talk with him about his ankle in the cafeteria, but was unable to do so. After school, during a conversation with Mrs. Ruise, he again saw Willie who once more asked for a ride home. When, upon questioning, Willie told him he had gotten a ride to school that morning because of his ankle, Respondent gave him a tongue lashing and told him to get someone else to take him home. As Willie told him there was no one else around to do it, Respondent reluctantly agreed and did take him home, but that was the last contact he had with Willie. It must be noted here that Respondent, on both occasions, agreed to give Willie a ride without checking around the school to see if someone else was available to do so. There was some question whether Willie was actually injured at this time and needed a ride. Ms. Wooten heard from other staff members that Willie did not seem to be nor did he complain of being hurt. By far the better evidence, however, clearly indicates that Willie was hurt on this occasion and needed transport and it is so found. Respondent used poor judgment in not looking for someone else to take Willie in light of the injunction he was under and in not reporting the contact after the fact. There is also some issue that Willie may have hidden in the car at Respondent's direction when Respondent drove him home. This is not established. Even according to Willie, it was his idea to hide to keep from being seen because of the fact that Respondent had been instructed not to be with him away from class. There is no evidence that Respondent attempted to conceal any of his actions with regard to Willie. As a result of all the above, on October 7, 1986, Ms. Wooten again sent Respondent a memo to advise him that all future incidents of unauthorized contact would be reported to IA. She was informed by IA that Respondent had had off-campus contacts with other students in addition to Sedaniel and Willie. These included Reggie Nixon, Andre Murray, and Trenton Glover among others. It was reported to her that Respondent would instruct them to meet him at a shopping center from which he would take them to his home where they would do chores for him there and at his nightclub. She felt this reported behavior, which she did not disbelieve, was inappropriate because (1) it was an abuse of his position as a teacher, and (2) a nightclub is no place for children. Ms. Wooten believes Respondent's effectiveness as a teacher has been adversely affected because she has heard the students are questioning his ability to control his students and are making moral judgments about his behavior in regard to Willie and Sedaniel. She has heard no specific comment by any student, however. During the period she has worked with Respondent, she does not feel there have been any conflicts which would create animosity on either his or her part. In fact, she has recommended him for several special projects which would be to his benefit. Ms. Wooten is convinced that Respondent has an ability to relate to troubled children who tend to seek him out. In fact, former students often come back to school to see him. This is both good and bad. Initially, she favorably commented on this in an evaluation of Respondent but after some of these students began making trouble, and after, at a course she took, she learned that this conduct may indicate inappropriate luring of children for improper purposes, she began to look at it differently and tried to put a stop to it. With regard to Sedaniel Allen, Ms. Gaines' dissatisfaction with Respondent arose out of an incident in April, 1986, when Sedaniel had spent the night at Respondent's home without either Respondent or Sedaniel calling to let her know he was going to do that. Prior to the weekend in question, Respondent, acquiescing in Sedaniel's request to be allowed to come over with some other boys, wrote her a note requesting permission for Sedaniel to come to his house to work for him for pay. She agreed to this and signed the permission slip but never returned it to the Respondent. Had Sedaniel returned home on Saturday night, she would not have been upset. In fact, however, Sedaniel did not come home until Sunday evening when Respondent dropped him off. Ms. Gaines and her husband were angry over this and told Sedaniel they didn't want him to go back to Respondent's house ever again. They did not pass this information on to the Respondent, however. Nonetheless, two weeks later, on a Saturday morning, Sedaniel disappeared again. When she checked around, she found that Respondent had picked him up again at the "Gate" of the housing project in which they lived. That evening, Mr. Gaines went to Respondent's house in Deerfield Beach where he found Sedaniel watching television. On this occasion, Respondent had not sent home a permission slip, but subsequent inquiry showed it was Sedaniel who initiated the visit and who had told Respondent that he had permission to be there. He had also told Respondent he had permission to spend the night on the first visit. On these visits the boys would swim, watch television, wrestle (with, on occasion, Respondent) and generally have a good time. Sedaniel indicates that he met with Respondent in his classroom after class on several occasions to discuss what would be done when he was at the Respondent's house. Some other teacher was always there when this happened. On most other occasions, Sedaniel would go to Respondent's classroom with Willie McCloud and wait while Willie would ask Respondent for a ride home. Ms. Sandra Ruise, who knew Sedaniel as one of her own students, and who was Respondent's team teacher, was frequently in the area of the room. She never saw Sedaniel in Respondent's room outside of class hours nor did she ever see any student come to have lunch in Respondent's classroom while she was there and she ate in the room with the Respondent almost every day. She knows Sedaniel's reputation for telling the truth, gleaned from discussions with other teachers and his mother, and it is not good. He has even lied about her, filing a false report about her which he subsequently recanted. Consequently, while it is clear Sedaniel did go to Respondent's home on two occasions, once without permission and once with permission for only a day visit, he was not a frequent visitor to Respondent's room outside of class hours and Respondent's relationship with him at school was not improper. As to the unauthorized visits by Sedaniel to Respondent's home, it is also clear that Sedaniel initiated the visits, begged to stay over night, and lied about having permission to be there. None of this excuses Respondent's failure to verify and have presented to him some concrete evidence of parental authorization for the visit and the length thereof, however. Sedaniel and some other boys, Willie McCloud, Andre Murray, and Trenton Glover, were with Respondent one time when he was on an errand and stopped by Club Bailey for a moment to drop something off. On that occasion, they picked up beer cans from a vacant lot and cleaned ashtrays outside the building. It well may be that the club was open at the time, a Sunday morning, (Respondent was inconsistent in his stories as to whether the club was open), but aside from Sedaniel's uncorroborated allegation that he cleaned the ashtrays inside the club, all the other testimony, including that of the other boys, indicates, and it is so found, that they did not go inside. Respondent alleges that one of the male visitors to Respondent's home on one of the occasions when the boys were there swimming made a remark to the effect that Reggie Nixon was "fine meat" or words to that effect and that Respondent immediately told this individual to keep quiet. Neither comment was heard by Reggie, though Willie and Andre allegedly did. Even if the comments were made, however, the evidence is clear that there were no approaches made to any of the boys, they were not touched or bothered in any way, and in fact, were not spoken to at all by any of the men in question, all of whom deny such comments being made. There is also no support for the allegation that one of the men asked if the boys had ever had sex with a man. What is certain, however, is that Sedaniel has a reputation for being untruthful and his report, as well as his characterization of Respondent's visitors as "faggots", is lacking in credibility. Each of the visitors identified by Sedaniel and the other boys testified at the hearing. The boys' descriptions of one or more of the men as "faggots" were based on their opinions of their hair styles, laughs, and voice patterns. This evidence is not enough to support a finding that there was anything untoward about Respondent's guests, especially in light of the youth and lack of sophistication of these boys and the unequivocal denials of Respondent and the other men. The investigation into Respondent's conduct, conducted by the school system's internal affairs division at the request of Ms. Wooten, resulted in a report incorporating much of the above information which was referred to Dr. Thomas P. Johnson, Associate Superintendent for Human Resources. Dr. Johnson referred it to a committee for evaluation which resulted in a recommendation to bring charges against the Respondent. The action here was based upon the allegations that respondent had taken students to his home without parental permission; that some of the students involved had indicated Respondent's friends were "faggots"; that there was an allegation by one of the children that they had been worked in Respondent's night club; and that Respondent had disregarded a direction from his principal to cease this activity. This all was aggravated by allegations that Respondent had been the subject of a report of similar activity several years previously which, while not resulting in disciplinary action against him, had resulted in a "Cease and Desist Order" being issued. This prior order was not offered into evidence. School officials considered that Respondent's failure to abide by the orders given him by his principal showed a lack of judgment and integrity and his invitation of the students to his home violated the ethical requirements of the Teacher's Code of Ethics. It must be noted that off-campus contacts are not, per se, improper if done with parental consent. With regard to the issue of parental consent, Respondent always sent a note home requesting permission. Sedaniel lied about having permission to spend the night on the first visit and about having permission on the second visit. If Respondent is at fault, it is in failing to insure by a phone call or by seeing the permission slip itself, that what he was told by Sedaniel was true. As to Respondent's alleged disregard of Ms. Wooten's direction to stay away from Sedaniel and Willie, the evidence is clear that Respondent attempted to do just that; that the two occasions on which he gave Willie a ride home, (the only contacts he had with Willie after the direction from the Principal), were as a direct result of Willie's initiation and Respondent's unwillingness to allow an injured boy to fend for himself. Respondent showed poor judgment here but the evidence does not support a finding of misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent be reinstated to a teaching position with the BCSS and that that he be awarded full back pay and benefits. RECOMMENDED this 15th day of July, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4727 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact (PFOF) submitted by the parties to this case. By the Petitioner Accepted and incorporated herein. Rejected as contrary to the weight of the evidence. The witness's testimony related to Earl Edwards and was offset by Edwards' grandmother. Accepted and incorporated herein. Rejected as a recitation of testimony, not a FOF. Accepted and incorporated herein. Rejected as it refers to any male in female garb which does not appear in the record as represented. Accepted. Accepted and incorporated herein. 9-11. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 14-15. Accepted and incorporated herein. 16-19. Accepted and incorporated herein. 20. Misleading. Respondent did take students to his home and paid them to perform chores in the yard. He did go to his lounge with some students on one occasion, but did not take them inside. 21-22. Accepted as the witness' opinion. Misleading. Sedaniel Allen, a reported liar, told Respondent not to pick him up at home. This was due more to Sedaniel's manipulation than to Respondent's actions. Rejected as contrary to the evidence. Rejected as contrary to the evidence. Accepted and incorporated herein. Respondent sent home a permission slip. The child reported he could stay. Respondent did not know he could not. Proposed FOF is incomplete and misleading. Accepted but phrased in a misleading way. Accepted as to the 1st and 2nd sentences. Accepted and incorporated herein. 31&32. Accepted and incorporated herein. This PFOF is misleading. The students went to the club once where Sedaniel cleaned some ashtrays outside while Respondent was doing something inside. The bar was closed to the public at the time and no alcohol was being served. The Respondent1s associates were at his home not at the club and there is substantial doubt as to the alleged comments. That the students were left at home unsupervised is contradicted by the Respondent who says his mother would come over and sit. In any case, this element is not in issue as to the charges. Accepted as to the facts, not the inferences. This PFOF does not make sense. Rejected. Accepted. Accepted. Rejected in that the transcript says he went to Respondent's home on 5 to 10 occasions but did not spend the night each time. Accepted as to what the witness testified to. Use of word feminine is improper. The cousins were male but were described as feminine in demeanor. Accepted. 42&43. Accepted. Accepted (See 33, supra). Accepted. Accepted. Misleading in that this student is the one who initiated all contact after the principal's directive. Accepted as the witness's opinions--the issue of comments was not established. Accepted but irrelevant. Rejected as an improper conclusion drawn from the evidence. This PFOF is incompetent in that it is impossible to determine who is being described. Rejected as contrary to the weight of the evidence admitted at hearing. Accepted and incorporated herein. 54&55. Accepted. 56&57. Accepted. By the Respondent 1-3. Accepted and incorporated herein. 4-10. Accepted. 11. Accepted and incorporated herein. 12. Accepted. 13-15. Accepted and incorporated herein. 16-21. Accepted. 22&23. Accepted and incorporated herein. 24. Accepted. 25&26. Accepted. 27-31. Accepted. 32-35. Accepted. 36-40. Accepted and incorporated herein. 41-44. Accepted and incorporated herein. 45&46. Accepted. 47. Accepted. 48. Accepted. 49. Accepted and incorporated herein. 50-55. Accepted. 56-58. Accepted and incorporated herein. 59. Accepted. 60-66. Accepted and incorporated herein. 67-76. Accepted and incorporated herein. 77. Accepted. 78-80. Accepted and incorporated herein. 81-83. Accepted. 84-90. Accepted and incorporated herein. 91-93. Accepted. 94-96. Accepted. 97-100. Accepted. 101-104. Accepted. 105&106. Accepted and incorporated herein. 107&108. Accepted and incorporated herein. 109. Accepted. 110-115. Accepted. 116. Immaterial. 117-119. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. 124-125. Accepted. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 S.W. 4th Street Fort Lauderdale, Florida 33312 Charles T. Whitelock, Esquire Whitelock and Moldof 1311 Southeast Second Avenue Fort Lauderdale, Florida 33316 Leslie Holland, Esquire Staff Counsel, FEA/United 208 West Pensacola Street Tallahassee, Florida 32301
The Issue Whether the Respondent, Anna Mann, should be dismissed from her employment with the Palm Beach County School Board.
Findings Of Fact Petitioner is a school board charged with the duty to operate, control, and supervise the public schools within the Palm Beach County School District. Such authority includes, but is not limited to, the employment and discipline of the instructional staff for all Palm Beach County public schools. At all times material to the allegations of this case, Respondent was employed by Petitioner as a classroom teacher teaching Family and Consumer Sciences (formerly known as Home Economics). Respondent's teaching duties were at Glades Central Community High School (GCCHS). Respondent received a continuing contract (CC) for employment during the 1974-75 school year. There is no evidence that Respondent elected to accept a professional services contract (PSC) during her tenure with the District. Respondent did not voluntarily relinquish her continuing contract. Consequently, it is presumed Respondent continued employment as a CC teacher until the end of the 1997-98 school year. At the conclusion of the 1997-98 school year, the superintendent of schools, acting on the recommendation of the principal, notified Respondent that she would not be recommended for employment and would not be offered a teaching contract for the subsequent school year. This notice was issued on or before April 1, 1998. Such notice further advised Respondent that her employment with the District would end on June 11, 1998. Upon receipt of the notice that she would not be re- appointed for employment, Respondent timely challenged the termination, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings. Thereafter, in accordance with the notice previously provided to Respondent, the District did not offer Respondent a contract to teach for the 1998-99 school year. The District utilizes an evaluation instrument known as the Classroom Teacher Assessment System (CTAS) Evaluation. Persons using this CTAS tool must be trained and approved prior to implementing any use of the instrument for teacher assessment. All individuals in this proceeding who assessed Respondent's classroom performance were fully trained and authorized to evaluate Respondent. Those using the CTAS instrument had been trained and approved in its use. Those using other methods of evaluation were also fully trained and approved for evaluation of instructional personnel. While Respondent did not agree with the findings of the assessments, Respondent has not raised any credible challenge to the qualifications of any assessor. The CTAS instrument rates the teacher as "acceptable" for which 2 points are assigned or as "concern" for which 1 point is given. There are sixteen specific assessment areas covered by the CTAS instrument. Thus, there is a possible 32-point score for any teacher receiving "acceptable" in all areas of review. Teachers with less than 28 points are formally directed to correct the cited deficiencies. In May of 1996, Respondent was given an annual evaluation by the Assistant Principal, Mr. Campbell. This assessment noted four areas of concern and yielded a total score of 28 points. The topics of the assessment wherein Respondent showed concern (as opposed to acceptable performance) were: management of student conduct, instructional organization and development, presentation of subject matter, and establishes an appropriate classroom climate. Because Respondent had received a marginal rating in the prior annual assessment, Dr. Grear directed another Assistant Principal, Dr. Fuller, to conduct a mid-year evaluation for Respondent during the fall of 1996. This mid-year evaluation was conducted on December 6, 1996. On this occasion Dr. Fuller observed Respondent in all three of her classes. The evaluation comments were memorialized on a Florida Performance Measurement System Screening/Summative Observation Instrument (FPMS) form as well as in anecdotal notes of the review. Although Respondent did not have many students in the classes observed (her largest observed class held 22 students), frequently students were off-task and not engaged in the learning process. According to Dr. Fuller, Respondent allowed students to put their heads on the desks, get out of their seats and walk around, and ignore her directions to them. In one instance when Respondent directed students to gather at a table for a demonstration, six of the thirteen attending students paid no attention. The CTAS evaluation for the December 6, 1996, mid-year review yielded a total score of 26 points. This instrument documented concerns in six assessment areas: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates ability to plan effectively, and demonstrates effective written communication skills. Respondent reviewed the CTAS form and executed the receipt of it on December 9, 1996. Based upon the concerns noted in the mid-year evaluation, Respondent was given a school site assistance plan. It was hoped this plan would allow Respondent to improve in the deficient areas. This plan outlined strategies and directed Respondent to perform certain tasks by the progress dates indicated in the plan. Respondent was advised that during the time frame identified in the school site assistance plan she would be observed to determine if deficiencies had been corrected. Over the course of the rest of that school year, Respondent continued to receive school site assistance. Unfortunately, although she was able to improve in two areas of concern, she was not able to remedy all deficiencies. At the conclusion of the 1996-97 school year Respondent still had six areas of concern (albeit two new areas of concern added to four uncorrected deficiencies). Assistant Principal Jean Beehler performed Respondent's annual evaluation at the end of the 1996-97 school year. This evaluation, conducted on March 12, 1997, awarded Respondent a total score of 26 points. The areas of concern noted on this CTAS form were: management of student conduct, instructional organization and development, presentation of subject matter, establishes an appropriate classroom climate, demonstrates knowledge of subject matter, and demonstrates ability to evaluate instructional needs. To her credit, Respondent had improved in planning and written communication skills. Moreover, she demonstrated compliance with the curriculum framework for her courses. Nevertheless, because there were still six areas of concern at the end of the school year, Respondent was given a district level professional development plan to assist her in the correction of the deficiencies. This district level plan (See Petitioner's exhibits 5, 6, and 8) replaced the school site plan. The strategies and directives of this plan offered Respondent a wider level of resources for improvement. A portion of this plan outlined summer remediation activities for Respondent. As to all portions of the plan, Respondent was given set time frames within which to accomplish various tasks. At all times material to the evaluations and plans adopted for Respondent during the 1996-97 school year Respondent had the assistance of Clarence Gunn, a representative from the Classroom Teachers' Association. Mr. Gunn was aware of the evaluations and recommendations for correction made to Respondent and participated in meetings conducted with the teacher when the annual evaluation was reviewed and when the subsequent corrective plan was implemented. It is undisputed that Respondent was given the entire 1997-98 school year to utilize numerous school resources in order to remedy the deficiencies outlined by the CTAS evaluations from the prior year. Respondent was offered assistance at the school site from administrators and peer teachers, as well as from district support staff. Respondent was permitted to attend various conferences and seminars. Despite the numerous and continuous efforts of school personnel to assist in the correction of the deficiencies, Respondent remained resolved, and improvidently observed to students that the school administration was out to get her job. Although Respondent attended workshops and made some efforts to improve, neither gravamen of the deficiencies nor the remedies necessary to correct them registered with Respondent until the time of hearing. In short, the Respondent did not correct the deficiencies. Students in Respondent's class continued to exhibit unacceptable, out of control, behaviors. They ignored her directions, tampered with her resource materials, and would walk out of the classroom. The mid-year evaluation conducted on December 9, 1997, by the principal, Dr. Grear, mirrored the past CTAS forms in that Respondent still showed the same six areas of concern. The district level professional development plan was updated in January 1998 to again offer Respondent assistance, guidance and timelines for correction of the deficiencies. Among the aids offered to Respondent were full-day workshops (for which substitutes were provided for Respondent's classes), after school seminars, reading materials and videos. Regional personnel, an outside expert, and peer-level teachers were also offered to Respondent. None of these individuals or references resulted in the correction of the deficiencies. In March 1998, Respondent was given her annual evaluation which noted the same six areas of concern. As a result, on or about April 1, 1998, Respondent was notified that the superintendent would recommend that the School Board not renew Respondent's teaching contract for the 1998-99 school year. Perhaps most telling of Respondent's failure to maintain classroom management and to establish an appropriate classroom climate was the testimony of Respondent's witness, Mary Willingham. Ms. Willingham was a student in two of Respondent's classes during the 1997-98 school year. She recited different activities done in the classes but when asked: Did you experience the same kind of disruptive behavior in your classmates, like, throwing books and throwing Crayolas in your other three classes like you did in Mrs. Mann's class? Answer: No, nothing like it was in her class. Even Ms. Rasmussen, the AVDA guest speaker in Respondent's classroom, had to shorten a presentation due to the disruptive conduct of the students while Respondent was present in the classroom. The collective bargaining agreement between the School Board and the classroom teachers (the contract) contains several paragraphs Respondent argues are pertinent to this case. Article II, Section G, paragraph 3 of the contract provides: 3. The evaluation shall be discussed with the employee by the evaluator. After the conference, the employee shall sign the completed evaluation form to acknowledge that it has been received. The employee shall have the right to initiate a written response to the evaluation which shall be made a part of the employee's official personnel file. If a PSC/CC employee's performance warrants a mid-year evaluation then such mid- year evaluation shall be completed by December 10 and shall follow all aspects of this Section. If any deficiency is noted on the mid-year evaluation, the Principal shall provide the employee with written and specific recommendations for improvement within twenty (20) days of the employee receiving the mid-year evaluation. The Principal/District will provide assistance to the affected employee in all noted areas of concern and adequate time to improve. Except as provided in this Section, employees shall be formally evaluated once yearly prior to May 31. As to both mid-year evaluations conducted in this matter the Petitioner complied with the provisions set forth in Article II, Section G, paragraph 3. Article II, Section M, of the contract provides, in pertinent part: With the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrong- doing, setting forth the specific charges against that employee prior to taking any action. * * * Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: * * * (d) Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken includes either a suspension or a dismissal, the grievance shall be initiated at STEP TWO. Pertinent to this case, Petitioner fully advised Respondent of the allegations which resulted in the non-renewal of her CC contract. Moreover, Petitioner fully advised Respondent of the remedies necessary to correct all deficiencies. Finally, Petitioner extended to Respondent a protracted period of time within which to correct such deficiencies. In reaching such conclusions, it is observed that Respondent was provided adequate notice of all deficiencies asserted by the Petitioner, was kept apprised of her progress (or lack thereof) in the efforts to remedy the deficiencies, was given a sufficient number of evaluations by different evaluators to properly and accurately document the areas of concern, and was afforded two school years to correct the deficiencies noted in her evaluations. To her credit, Respondent has, over the course of her employment, provided valuable contributions to the GCCHS community. She has maintained close contact in the community and supported many extracurricular activities. Indeed, it is not subject to dispute that she has been helpful to the school and its community. Such positive contributions do not, however, ameliorate her classroom deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that School Board of Palm Beach County, Florida enter a final order affirming the decision to not renew Respondent's teaching contract for the 1998-99 school year. DONE AND ENTERED this 10th day of March, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 March, 1999. COPIES FURNISHED: M. Annette Himmelbaum, Esquire 6770 Indian Creek Drive Suite 9E Miami Beach, Florida 33141 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32301 Thomas E. Elfers, Esquire Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Dr. Joan Kowel, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406
