The Issue Whether Respondent failed to correct noted performance deficiencies during his probationary period and therefore should be terminated from his employment with the Miami-Dade County School Board pursuant to Section 1012.34, Florida Statutes.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including M. A. Milam K-8 Center (Milam). For approximately the past 13 years, Dr. Robert Valenzuela has been the principal of Milam. Jeffrey Hernandez was an assistant principal at Milam during the 2001-2002, 2002-2003, and 2003-2004 school years. Michelle Judge is in her second year as an assistant principal at Milam. 5. During the 2001-2002, 2002-2003, and 2003-2004 school years, Respondent was a middle school social studies teacher at Milam. During the 2003-2004 school year, he taught advanced classes comprised of gifted students. Of the four middle school social studies teachers at Milam during the 2003-2004 school year, Respondent was the only one assigned to teach such advanced classes. Teaching gifted students was a coveted assignment. At the beginning of the 2003-2004 school year, when teaching assignments were made at Milam, it appeared, based upon Respondent's teaching record, that Respondent "was competent to teach the courses" he was assigned. Teachers at Milam, like all teachers employed by the School Board, are now, and have been at all times material to the instant case, evaluated in accordance with the School Board's Professional Assessment and Comprehensive Evaluation System (PACES).2 PACES is described in the PACES Teaching and Learning Professional Growth Manual (Manual). The Manual's preface contains, among other things, the following information: . . . . The PACES is a comprehensive, learner-centered, classroom-based assessment system that is designed to provide M-DCPS teachers, administrators, and other educators with information useful for improving teaching and learning in classrooms and schools. . . . The organization of this manual includes seven major Domains, subsumed Teaching and Learning Components, and Teaching and Learning Indicators. In addition, it contains extensive explanations and examples of the indicators to clarify their meanings and can be used by teachers and other instructional personnel as they develop professional growth plans and activities. A sub-set of the required indicators is used to make annual evaluation decisions. The teaching and learning indicators in the PACES are not simple statements of particular teaching behaviors. Rather, they are statements that describe observable elements of quality teaching and learning that are assessed within the unique context of each classroom. The PACES Teaching and Learning Professional Growth Manual does not reflect a single philosophy or model of teaching and learning. It has been designed to accommodate a wide variety of teaching methods and learning tasks. The manual appreciates teachers as professionals. Thus, this manual does not tell teachers how they should teach. * * * Appropriate professional growth activities for teachers may be addressed by using PACES Teaching and Learning Indicators including those that are not required for annual evaluation. All teachers are evaluated with the M-DCPS Teaching and Learning Professional Growth Manual using only the Required Indicators. * * * Throughout this manual, some Teaching and Learning Indicators are in bold print and lined above and below the text. These are required indicators for evaluation by the principal or designated administrator. The decision rule is also in bold type and states that a post-observation meeting must occur between the teacher and the evaluator for the purpose of designating professional growth activities. . . . * * * The "seven major Domains, subsumed Teaching and Learning Components, and Teaching and Learning Indicators" are further explained in the following introductory passage in the Manual: This manual is organized by seven Domains as follows: Planning for Teaching and Learning Managing the Learning Environment Teacher/Learner Relationships Enhancing and Enabling Learning Enabling Thinking Classroom-Based Assessments of Learning Professional Responsibilities Domains I-VI are further defined by sets of teaching and learning Components and their Indicators. Indicators are the fundamental units of observation that are used to make professional judgments about the quality of teaching and learning. Domain VII includes indicators of ongoing compliance with rules, policies, and procedures that are used as part of the annual evaluation of M-DCPS teachers. Required Indicators for evaluation are designated throughout the manual in bold print. These Required Indicators represent the fundamental level of teaching practice to be demonstrated by all instructional personnel, and are aligned with the Florida Department of Education Educator Accomplished and Professional Practices. . . . There are 44 "Required Indicators." A teacher's performance is considered unsatisfactory if it fails to meet one or more of these "Required Indicators." At the beginning of each school year, Milam's administrators review the features of PACES with the teachers at the school. Such a review was conducted at the outset of the 2003- 2004 school year. At all times material to the instant case, Principal Valenzuela and Assistant Principals Hernandez and Judge were trained in PACES and authorized to observe and evaluate teachers at Milam. They each conducted at least one observation/evaluation of Respondent during the 2003-2004 school year. Assistant Principal Hernandez was the first of the three to observe and evaluate Respondent during the 2003-2004 school year. Assistant Principal Hernandez's initial observation of Respondent was conducted on November 5, 2003. As required by PACES, prior to this November 5, 2003, observation, Respondent met with Assistant Principal Hernandez to discuss the lesson plan Respondent had prepared for the class that Assistant Principal Hernandez was going to observe. Assistant Principal Hernandez "rejected" the lesson plan. Erroneously believing that Assistant Principal Hernandez had "rejected" the lesson plan because of its format, Respondent went to Principal Valenzuela and complained that, under the collective bargaining agreement, Assistant Principal Hernandez had the authority merely to suggest, but not to require, that Respondent's lesson plans follow a particular format. Principal Valenzuela acknowledged that Respondent was correct and recommended that Respondent go back to Assistant Principal Hernandez and revisit the matter with him. When Respondent did so, Assistant Principal Hernandez attempted to make clear to Respondent that his concern was with the content, not the format, of the lesson plan. Respondent's performance during the observation on November 5, 2003, was unsatisfactory. Respondent had a post-observation meeting with Assistant Principal Hernandez on November 6, 2003. That same day, Assistant Principal Hernandez prepared the following memorandum, which accurately summarized what had occurred at the meeting: On Thursday, November 6, 2003, at 2:30 p.m., a PACES Post-Observation Meeting was held with you in my office. During our meeting, I informed you that you had not met standards for II.D, II.E, IV.D, V.A, V.B., V.C, VI.B, and VI.C. Therefore, I will be conducting a follow-up observation within the next three weeks. Furthermore, I informed you that you had the opportunity to work with a Professional Growth Team to assist you with the indicators identified as not meeting standards. You declined having a Professional Growth Team assigned to you at this time. If you have any question or need further information, please do not hesitate to see me. Respondent was given the memorandum on November 10, 2003, at which time he signed it, thereby acknowledging that he received it and that he "continu[ed] to decline having a Professional Growth Team assigned to [him]." Inasmuch as this was Respondent's initial evaluation of the school year, pursuant to PACES, it was "not of record" and he was free to "to decline having a Professional Growth Team assigned to [him]." In addition to being given the "opportunity to work with a Professional Growth Team," Respondent was also advised to review the Manual, observe other teachers in the classroom,3 and go to the School Board website and view PACES video "vignettes" showing teachers modeling classroom performance meeting each of the "Required Indicators." Assistant Principal Hernandez conducted a follow-up observation of Respondent on January 30, 2004, while Respondent was teaching a social studies lesson "ha[ving] to do with discrimination" to a class of gifted sixth graders. Respondent's performance during this observation on January 30, 2004, was unsatisfactory. On February 5, 2004, Principal Valenzuela and Assistant Principal Hernandez held a conference-for-the-record with Respondent to discuss Respondent's unsatisfactory performance during the January 30, 2004, observation. Following this conference-for-the record, Principal Valenzuela sent Respondent the following memorandum,4 dated February 5, 2004, which accurately summarized what had occurred at the conference-for-the record: A conference-for-the-record was held with you in my office on Thursday, February 5, 2004, at 9:35 a.m. Present at the conference were Jeffrey J. Hernandez, Assistant Principal and this administrator. You were provided the option for union representation, but you declined. The purpose of this conference is to recount the procedures relating to the 90-Day [C]alendar Day Performance Probation. An initial observation, (not of record) was conducted on November 5, 2003, and revealed below standard indicators. These indicators were reviewed with you on November 6, 2003, in a post observation meeting. At that meeting, you were offered the assistance of a Professional Growth Team (PGT) and you declined (see attached memorandum). Further, you were advised that you would be formally observed at a later date. Subsequent to the observation which was not of record, a formal observation was conducted on January 30, 2004, which identified below standard indicators in teaching and learning in Domain(s)/Component(s) II.D.1, IV.A.3, IV.A.5, IV.B.3, IV.C.2, IV.D.1, V.A.1, V.A.4, V.B.1, V.B.2, V.C.1, VI.B.1, VI.B.3, VI.C.4. At this scheduled conference-for- the-record, your input was solicited, resulting in the attached Professional Improvement Plan (PIP). It is your professional responsibility to complete the requirements of the PIP within the note[d] timelines. You were reminded that the PGT is herein formally assigned to assist you during the 90-Calendar Day Performance Probation. The probation period commences the day after receipt of the written PIP as evidenced by your signature and the date. Subsequent to the conclusion of the 90- Calendar Day Performance Probation, a determination will be made as to whether performance deficiencies have been satisfactorily corrected within the probation period. A recommendation by the principal will be made to the Superintendent that may lead to termination of your employment contract as stipulated in FS 231.29.[5] You were apprised of your right to clarify or explain any information recorded in this conference by this summary. Respondent signed the memorandum, acknowledging that he received it, on February 9, 2004. Respondent also signed the Professional Improvement Plan attached to the memorandum (First PIP) on February 9, 2004, indicating that he had "seen and received the document" on that date. Therefore, his 90-calendar day probationary period began on February 10, 2004. Prepared by Assistant Principal Hernandez, the First PIP was accurately noted the deficiencies he had found during his January 30, 2004, observation of Respondent,6 and prescribed activities designed to help Respondent correct these deficiencies. It read as follows: Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.D.1 Changes in teaching and learning activities are sufficient to engage learners. Deficiency: Changes in teaching and learning activities are insufficient to engage learners. This deficiency is evidenced by: Learner engagement was not promoted through a variety of means initiated by the teacher. The learners were sitting one per table. The learners were reading a worksheet and answering low recall questions throughout the lesson. As a result, the learners became disinterested and bored. This was evidenced by the girl sitting on the second table on the left playing with her nails, the boy sitting on the first table next to the teacher's desk hitting the table with [a] pencil and two boy[s] sitting on the right of the teacher's desk staring at the teacher with the[ir] arm[s] holding their head[s] on the desk. Improvement Plan: Read for understanding the explanations and examples for indicator II.D.1; Resource: The PACES Teaching and Learning Professional Growth Manual and The Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 12, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.A.3 Specific learning outcomes are clearly understood by learners. Deficiency: Specific learning outcomes are not clearly understood by learners. This deficiency is evidenced by: The learners were not provided with the lesson objective verbally nor written. The interactions between the teacher and the learners varied in topic as they arose. The focus of the lesson did not follow the established objective. Since the teacher did not specify what the learning outcomes were, students did not know what was expected of them. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.A.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 12, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.A.5 The purpose or importance of learning tasks is clear to learners. Deficiency: The purpose or importance of learning tasks is not clear to learners. This deficiency is evidence by: The learners did not have the opportunity to make any reference to the relevance of the learning activities to real life. At no time were the learners given the purpose or importance of activities the teacher asked them to do. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.A.5; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 19, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context. Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by: The learners were not provided the opportunity to achieve the complexity of learning context relevant to learning outcomes, enhancing learning, and broadening learner understandings. The learners were not involved in activities such as cooperative learning, student interactions, nor other techniques that would avoid the learner to become disinterested. The learners basically read a worksheet silently and then the teacher would ask low level recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 20, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.3 Teaching methods and learning tasks are implemented at an appropriate pace. Deficiency: Teaching methods and learning tasks are not implemented at an appropriate pace. This deficiency is evidenced by: The learners were involved in learning activities that were passive at all times throughout the lesson. The passive learning resulted in learners becoming bored. The learners were sitting down, listening to the teacher lecture on the worksheet and answering low level questions. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.B.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 24, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by: The learners were not effectively provided learning material nor aids that would accommodate their range of learner abilities and needs nor material that contributed to a better understanding of the lesson. The teaching aids only consisted of the worksheet students were reading throughout the lesson. Improvement Plan: Read for understanding the explanation and examples for Indicator IV.C.2; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 24, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.1 Learners have opportunities to learn at more than one cognitive and/or performance level to integrate knowledge and understandings. Deficiency: Learners do not have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. This deficiency is evidenced by: All learners did the same assignment with no variation to accommodate differences in learning styles. The learners were not given the opportunity to extend their activities from simple to complex levels to reflect the range of developmental and ability characteristics of learners. The learners read from a worksheet and answered lower level questions. For example, "What is discrimination?" Improvement Plan: Read for understanding the explanation and examples for Indicator IV.D.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by February 27, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.1 Learners are actively engaged and/or involved in developing associations. Deficiency: Learners are not actively engaged and/or involved in developing associations. This deficiency is evidenced by: The learners did not have the opportunity to link new associations to prior learning experiences so the objectives were meaningful to learners through transferring knowledge. The learners did not have the opportunity to retrieve prior learning knowledge and initiate learning. This was a result of the entire lesson consisting of only reading a worksheet silently and answering low level recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator V.A.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 2, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by: The learners did not actively share examples in the large group discussion to sufficiently enable their development of thinking abilities nor were learners asked to generate examples from their experiences in writing. Improvement Plan: Read for understanding the explanation and examples for Indicator V.A.4; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 2, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.B.1 A variety of questions that enable thinking are asked and/or solicited. Deficiency: A variety of questions that enable thinking are not asked and/or solicited. This deficiency is evidenced by: The learners were not asked questions that stimulated higher order thinking abilities nor [was there] variety in questioning [that was] conducted as tasks were performed. The teacher utilized questions in a recall format as the students read worksheets. Improvement Plan: Read for understanding the explanation and examples for Indicator V.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 4, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.B.2 Wait time is used as appropriate to enhance development of thinking skills. Deficiency: Wait time is not used as appropriate to enhance development of thinking skills. This deficiency is evidenced by: The learners were directed questions to answer verbally prior to asking the question. Therefore, learners were not allowed to ponder answers to questions, and to then respond. The teacher directed questions to individual learners from the beginning. Improvement Plan: Read for understanding the explanation and examples for Indicator V.B.2; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 1, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving. Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by: The learners were not involved in problems that needed solutions, enhanced reflective thinking nor linked causes to effects. The entire lesson involved learners reading a worksheet silently and learners responding to recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator V.C.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004. Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning. Component/Indicator VI.B.1 A range of learner responses is solicited as appropriate to assess various cognitive and/or performance tasks. Deficiency: A range of learner responses is not solicited as appropriate to assess various cognitive and/or performance tasks. This deficiency is evidenced by: The learners were not assessed informally throughout the lesson for the teacher to acquire information about the learner's progress toward understanding objectives. Improvement Plan: Read for understanding the explanation and examples for Indicator VI.B.1; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004. Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning. Component/Indicator VI.B.3 Adjustments in teaching and learning activities are made as needed **OR** no adjustments are necessary. Deficiency. Adjustments in teaching and learning activities are not made as needed. This deficiency is evidenced by: The learners were not provided a variety of learning tasks to avoid learner disinterest. The teacher did not change the difficulty level of content throughout the lesson. The entire lesson consisted of learners reading a worksheet and answering low level recall questions. Improvement Plan: Read for understanding the explanation and examples for Indicator VI.B.3; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 5, 2004. Domain VI Classroom-Based Assessment of Learning. Actively monitoring learner involvement in learning tasks throughout the lesson is an important element of effective teaching and learning. Component/Indicator VI.C.4 Learners receive specific feedback when learning tasks and/or learning outcomes are completed. Deficiency: Learners do not receive specific feedback when learning tasks and/or learning outcomes are completed. This deficiency is evidenced by: The learners were not provided specific feedback that would allow them to monitor their own completion of tasks and accomplishments of learning outcomes. When the learners would answer questions correctly or incorrectly, the teacher only responded with "OK, no, alright." Improvement Plan: Read for understanding the explanation and examples for Indicator VI.C.4; Resource: The PACES Teaching and Learning Professional Growth Manual and the Teacher Guide to PACES; Timeline: Summarize the main ideas of the component for discussion with the Professional Growth Team and submit the summary to the administrator by March 4, 2004. Under PACES, a teacher placed on probation must work with a professional growth team consisting of two members, one chosen by the teacher and the other selected by the principal. Daniel Atlas, the chairman of Milam's social studies department, and Lori Weiss were the two members of Respondent's professional growth team. Principal Valenzuela selected Mr. Atlas. Respondent chose Ms. Weiss. Both Mr. Atlas and Ms. Weiss had been trained in PACES and had been on professional growth teams before. During Respondent's 90-calendar day probationary period, Mr. Atlas and Ms. Weiss attempted to help Respondent correct his performance deficiencies.7 Respondent timely completed all of the activities prescribed in the First PIP. Respondent was next formally observed on March 11, 2004, while he was teaching a civics lesson to a class of gifted seventh graders. Assistant Principal Judge conducted this March 11, 2004, observation. Respondent's performance during the observation was unsatisfactory. Principal Valenzuela and Assistant Principal Judge met with Respondent on March 19, 2004, to discuss Respondent's unsatisfactory performance during the March 11, 2004, observation and to review the Professional Improvement Plan Assistant Principal Judge had prepared for Respondent following the observation (Second PIP). At this March 19, 2004, meeting, Respondent signed the Second PIP, indicating that he had "seen and received the document" on that date. The Second PIP accurately noted the deficiencies Assistant Principal Judge had found during her March 11, 2004, observation of Respondent8 and prescribed activities designed to help Respondent correct these deficiencies. It read as follows: Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.A.3 There are no inefficient delays in organizational or teaching and learning activities. Deficiency: There are inefficient delays in organizational or teaching and learning activities. This deficiency is evidenced by: The objective of the lesson was to discuss nominations, candidates, and campaign tools during an election. Learners were digressed from the objective when the teacher read an article about the war and did not make any connection to the purpose of the election. Upon the teacher finishing the reading, the learners began asking questions since confusion arose. The teacher stated, "Well, let's leave this discussion about the article for now because it is off topic." The learning was also interrupted when a learner arrived late to class and the teacher wasted learning time to publicly reprimand and inquire about the student's whereabouts. This resulted in the other learners becoming off-task by involving themselves in a [] conversation. Improvement Plan: Gain a better understanding through direct classroom observation of beginning learning in a timely manner without inefficient delays in organizational or teaching and learning activities; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator II.A.3; Timeline: Discuss and identify with the administrator techniques and strategies to avoid inefficient delays in organizational or teaching and learning activities. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by March 26, 2004. Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.E.1 Expectations about acceptable behavior are clear to learners and are consistently maintained throughout the lesson. Deficiency: Expectations about acceptable behavior are not clear to learners and are not consistently maintained throughout the lesson. This deficiency is evidenced by: The behavioral expectations of students are not clearly understood by the learners. When the teacher began to publicly inquire about the whereabouts of the tardy learner, the learner began to answer him back in a rude and discourteous fashion. The teacher did not monitor effectively to prevent or diffuse the situation in which the unacceptable behavior occurred. Furthermore, it was evident that a tardy policy is not in place nor clear to the learners.[9] Improvement Plan: Gain a better understanding through direct classroom observation of expectations about acceptable behavior that are clear to learners and are consistently maintained throughout the lesson; Resource: Observation of a colleague and/or the viewing of PACES vignettes for required indicator II.E.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to convey and consistently maintain expectations about acceptable behavior. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 5, 2004. Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.E.5 Unacceptable behavior is managed quickly and in a reasonable manner **OR** there is no unacceptable behavior. Deficiency: Unacceptable behavior is not managed quickly and in a reasonable manner. This deficiency is evidenced by: Managing unacceptable behavior of learners in a reasonable manner was not evident. The learner who was tardy was disrespectful and argumentative with the teacher, and no discipline plan was followed (no consequences from this incident). Improvement Plan: Gain a better understanding through direct observation of managing unacceptable behavior quickly and in a reasonable manner; Resource: Observation of a colleague and/or the viewing of PACES vignettes for required indicator II.E.5; Timeline: Discuss and identify with the administrator techniques and strategies to be used [for the] effective[] [] management of unacceptable behavior. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 9, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.3 Content knowledge is accurate and is clear to learners. Deficiency: Content knowledge is not accurate and is not clear to learners. This deficiency is evidenced by: The learners asked questions related to the objective, and the teacher was not able to provide them with an answer. For example, a student asked, "From where do you get the delegates?" and the teacher made statements, including "I do not know the answer" and "I do not like politics." The teacher made no reference to the fact that research would be done to learn the answers to the learners' questions. Improvement Plan: Gain a better understanding through direct observation of a learning climate where content knowledge is accurate and is clear to learners; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.D.3; Timeline: Discuss and identify with the administrator techniques and strategies to be used to demonstrate content knowledge that is accurate and is clear to learners. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 14, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context. Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by: Learners were not involved in learning activities nor exposed to a discussion session appropriate for the complexity of the learning context nor the level of academic standards of a gifted class. The learners were only exposed to a general teacher-directed lecture and then asked to define vocabulary words already used throughout the lesson. Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching and learning activities are appropriate for the complexity of the learning context; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.B.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching and learning activities are appropriate for the complexity of the learning context. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 15, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.2 Teaching methods and learning tasks are implemented in a logical sequence. Deficiency: Teaching methods and learning tasks are not implemented in a logical sequence. This deficiency is evidenced by: Learning activities were not implemented in a logical sequence. The learners were asked to define the lesson's vocabulary words at the end of the lesson, even though they had already used the words throughout the lecture. Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching methods and learning tasks are implemented in a logical sequence; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.B.2; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching methods and learning tasks are implemented in a logical sequence. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 15, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving. Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by: Learning activities did not engage learners in problem solving discussions. The lesson consisted of teacher-directed instruction and defining vocabulary words. The teacher did not provide learners with situations that require problem solving. Improvement Plan: Gain a better understanding through direct observation of a learning climate where learners are actively engaged and/or involved in critical analysis and/or problem solving; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator V.C.1; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that [l]earners are actively engaged and/or involved in critical analysis and/or problem solving. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 19, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by: The learners were not provided appropriate teaching aids nor materials to accommodate the range of individual differences among a gifted class. The teaching aids only consisted of the students using a textbook to define vocabulary words at the end of the lesson. Improvement Plan: Gain a better understanding through direct observation of a learning climate where teaching aids and/or materials are used properly and accommodate the range of individual differences among learners; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.C.2; Timeline: Discuss and identify with the administrator techniques and strategies to be used to ensure that teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 20, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.6 Potential areas or points of difficulty in content and in learning tasks are emphasized as needed. Deficiency: Potential areas or points of difficulty in content and in learning tasks are not emphasized as needed. This is evidenced by: The learners asked questions that exhibited areas of difficulty and confusion throughout the lesson. The teacher did not clarify the points of difficulty appropriately. For example, a student asked, "From where do you get the delegates?" The teacher responded with statements including "I do not know the answer" and "I do not like politics." The teacher made no reference to the fact that research would be done to learn the answers to the learners' questions. Improvement Plan: Gain a better understanding through direct observation of a learning climate where potential areas or points of difficulty in content and in learning tasks are emphasized as needed; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator IV.D.6; Timeline: Discuss and identify with the administrator techniques and strategies to be used to emphasize potential areas or points of difficulty in content and in learning tasks. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 20, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by: The learners were not provided the opportunity to generate examples and share personal experiences related to the objective of elections. The lesson basically consisted of a lecture and defining words. Improvement Plan: Gain a better understanding through direct observation of a learning climate where learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences; Resource: Observation of a colleague. The viewing of PACES vignettes for required indicator V.A.4; Timeline: Discuss and identify with the administrator techniques and strategies to be used in order that learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Apply the newly learned strategies. Maintain a log of what works, what does not and why. Present the log to the administrator by April 21, 2004. Respondent timely submitted all of the logs he was required to keep in accordance with the Second PIP. Principal Valenzuela conducted the next formal observation of Respondent. The observation took place on April 24, 2004, when Respondent had an advanced sixth-grade geography class in his classroom. Respondent's performance during this April 24, 2004, observation was unsatisfactory. Principal Valenzuela met with Respondent on April 29, 2004, to discuss Respondent's unsatisfactory performance during the April 24, 2004, observation and to review the Professional Improvement Plan Principal Valenzuela had prepared for him following the observation (Third PIP). At this April 29, 2004, meeting, Respondent signed the Third PIP, indicating that he had "seen and received the document" on that date. The Third PIP accurately noted the deficiencies Principal Valenzuela had found during his April 24, 2004, observation of Respondent and prescribed activities designed to help Respondent correct these deficiencies. It read as follows: Domain II Managing the Learning Environment. Effective classroom and behavior management are necessary for effective teaching and learning. Component/Indicator II.A.3 There are no inefficient delays in organizational or teaching and learning activities. Deficiency: There are inefficient delays in organizational or teaching and learning activities. This deficiency is evidenced by: The learning activities reflected inefficient delays. The students were given a quiz. Initially, they were told that they had ten minutes. Five minutes into the test the teacher interrupted to add two additional questions. These questions were dictated. The teacher did not appear[] prepared for the dictation. The learners appeared confused. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.A.6 Directions necessary to implement learning tasks are clear and complete. Deficiency: Directions necessary to implement learning tasks are not clear and complete. This deficiency is evidenced by: Learners appeared confused after the teacher gave several directions. The teacher was not clear regarding a quiz. First, the quiz was scheduled to last ten minutes. Then the learners were asked to write short paragraphs, then a simple sentence. The teacher also added two questions at the end of the lesson that he acknowledged as covering material not previously taught. [T]he teacher interrupted the learners during the quiz. The quiz lasted 25 minutes. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.1 Teaching and learning activities are appropriate for the complexity of the learning context. Deficiency: Teaching and learning activities are not appropriate for the complexity of the learning context. This deficiency is evidenced by: The learners were not involved in complex learning activities. The activities involved whole group instruction and teacher directed lecturing and short answers.[10] The teacher used the textbook and a wall map during the lesson. The teacher questioned some of the learners one at a time. Low cognitive question such as WHAT type questions prevailed during the lesson i.e. What is the capital of Mongolia? Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.B.2 Teaching methods and learning tasks are implemented in a logical sequence. Deficiency: Teaching methods and learning tasks are not implemented in a logical sequence. This deficiency is evidenced by: Learning activities were not implemented in a logical sequence. The learners were asked questions about material not covered in class. The teacher discussed countries around China, which was the focus of the lesson, but did not discuss in depth the relationships of those countries. The learners were given directions about the quiz, but the teacher changed said directions several times. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.C.2 Teaching aids and/or materials are used properly and accommodate the range of individual differences among learners. Deficiency: Teaching aids and/or materials are not used properly and do not accommodate the range of individual differences among learners. This deficiency is evidenced by: The teacher did not use teaching aids properly. The teacher used a wall map, but only in passing. The teacher mainly lectured. There were lap maps and other visual aids in the room but were not used. The materials did not meet the needs of the advanced learners that made up that class. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.1 Learners have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. Deficiency: Learners do not have opportunities to learn at more than one cognitive and/or performance level or to integrate knowledge and understandings. This deficiency is evidenced by: The learners were exposed to many low level cognitive questions, such as What was the name of the island that is called Taiwan today? The teacher did not allow time to integrate knowledge as the whole class was teacher directed lecture. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain IV Enhancing and Enabling Learning. An important dimension of the enhancement of learning is the interactive process of teaching and learning. Component/Indicator IV.D.6 Potential areas or points of difficulty in content and in learning tasks are emphasized as needed. Deficiency: Potential areas or points of difficulty in content and in learning tasks are not emphasized as needed. This deficiency is evidenced by: The teacher did not identify potential points of difficulty during the lesson. The learners appeared confused as the lesson progressed. The teacher did not elaborate on the learners['] concerns. Teacher directed lecture did not allow for points of interest to develop. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.A.4 Learners are actively engaged and/or involved and encouraged to generate and think about examples from their own experiences. Deficiency: Learners are not actively engaged and/or not involved and not encouraged to generate and think about examples from their own experiences. This deficiency is evidenced by: The learners were not provided the opportunity to generate and share personal experiences related to the objective of the lesson. The teacher provided misleading information when he compared the Cuban guajiro to the [M]ongol[s] as similar. The cultures have no similarities.[11] The Cuban hut was made up of straw and adobe walls while the [M]ongol[s'] hut is made up [of] animal skins and wooden poles. Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. Domain V Enabling Thinking. The teacher uses methods that actively involve learners in ample opportunities to develop concepts and skills in generating, structuring, transferring, and transforming knowledge. Component/Indicator V.C.1 Learners are actively engaged and/or involved in critical analysis and/or problem solving. Deficiency: Learners are not actively engaged and/or involved in critical analysis and/or problem solving. This deficiency is evidenced by: The learners were not actively engaged or involved in critical analysis. The lesson was teacher directed lecture to whole class group. The whole time was the same. The learners were never in small groups and the questions used were predominantly low cognitive level, i.e. What is the capital of Mongolia? Improvement Plan: Engage in self-assessment activities; Resource: Utilization of the PACES web site link "Accomplished Practices/Required Indicators" to guide self-assessment; Timeline: Present a written reflective summary of the self- assessment activities to the administrator by May 18, 2004. On May 18, 2004, in response to the directives contained in the Third PIP, Respondent submitted the following written statement to Principal Valenzuela: The following is a written reflective summary of self-assessment for Paces Component/Indicators II.[A].3, IV.A.6, IV.B.1, IV.B.2, IV.C.2, IV.D.1, IV.D.6, V.A.4, and V.C.1. Based on the many (more than 10) observations of other teachers I have had to conduct, I firmly believe that I am a good teacher of the subjects I am authorized to teach. Further, this self-assessment is reinforced by conversations with my peers, those who have had the opportunity to observe me in the classroom. Finally, I find it peculiar, to say the least, that for the first two years at this school I received spotless evaluations with regard to teaching, then right after a minor disagreement with Mr. Hernandez concerning the lesson plan format I was using and after I had applied for and received approval for a transfer, I suddenly became a worthless instructor.[12] Taking the position that this submission was not in compliance with the directives contained in the Third PIP, Principal Valenzuela sent Respondent the following memorandum, dated May 19, 2004: This memorandum is a formal notification that your reflections are incomplete. Each indicator needed to be addressed individually as per the Professional Development Plan. Please submit the completed assignment no later than Friday May 21st to avoid any further disciplinary action. Please also note that your final observation will take place either May 20th or May 21st. Please submit to me lesson plans, grade book, parent log and a sample work folder by Thursday May 20th. Your attention to this serious matter is important. On May 21, 2004, Respondent supplied Principal Valenzuela with a separate "self-assessment" summary for each deficiency noted in the Third PIP, but the body of each summary was identical to the body of the single summary that Respondent had initially submitted to Principal Valenzuela on May 18, 2004. Later that same day (May 21, 2004), Principal Valenzuela responded to these submissions by sending the following memorandum to Respondent: This memorandum is a second formal notification that the reflections submitted this morning, May 21st at 11:30 a.m. are still incomplete. It is obvious that you ignored the directives given in my memorandum dated May 19th, 2004. Please note that I reported the matter to the Office of Professional Standards as I mentioned in your classroom. I will be in your classroom Monday, May 24th to conduct the final observation. Your attention to this serious matter is important. As promised, Principal Valenzuela came to Respondent's classroom on May 24, 2004, (which was within 14 days of the close of Respondent's 90-calendar day probationary period) to conduct a formal observation of Respondent. Respondent was teaching an advanced seventh grade civics class, going over material for the final examination in the class. He "sped through the lesson" in a very disorganized and superficial manner without making any effort to obtain "feedback from the student[s]." Principal Valenzuela accurately determined that Respondent's performance was deficient with respect to the following "Required Indicators": II.D.1, IV.B.2, IV.B.3, IV.C.2, IV.D.1, V.A.1, V.A.4, V.B.1, V.B.2, V.C.1, VI.B.1, and VI.C.4. Principal Valenzuela had a post-observation meeting with Respondent, at which Respondent reviewed and signed the observation form on which Principal Valenzuela had noted Respondent's performance deficiencies during the May 24, 2004, observation. Based on Respondent's failure to have "satisfactorily corrected . . . noted performance deficiencies within the provided timeframe," despite having been "provided assistance," Principal Valenzuela recommended that Respondent's "contract be terminated." Respondent was provided written notification of this recommendation on May 25, 2004, and again on June 1, 2004. The Superintendent accepted Principal Valenzuela's termination recommendation. By letter dated June 21, 2004, the Superintendent informed Respondent that he was recommending that the School Board terminate Respondent's contract. Respondent responded by sending the Superintendent a letter, dated June 30, 2004, "request[ing] a hearing regarding [the Superintendent's] recommendation." The matter was referred to DOAH on July 6, 2004. On July 14, 2004, the School Board purported to take action to terminate Respondent's employment with the School Board.13
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order terminating Respondent's employment in accordance with Section 1012.34, Florida Statutes, for failure to satisfactorily correct noted performance deficiencies. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 29th day of October, 2004.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent John H. Hopkins, Jr., has been employed with the Pinellas County school system since 1961. He has taught in elementary, junior high, middle and high schools. In addition to sick leave, a teacher employed with the Pinellas County school system is entitled to the following days of leave without loss of pay: two days per year for emergency or extenuating circumstances and two days per year for personal leave. These days are charged to the sick leave allowance of the teacher. In the 1976-77 school year, respondent was a science teacher at Disston Middle School. When a teacher has unused days which can be charged to sick leave, it is the established practice at Disston for the teacher to notify the assistant principal in advance when he intends to be absent and to complete the paperwork when he returns to duty. If a teacher does not have days accrued which can be charged to sick leave, he must take leave without pay. Leaves of absence without pay must be approved in advance by the county personnel office. At approximately 8:30 p.m. on January 17, 1977, a Monday, respondent telephoned Robert Twitty, the assistant principal at Disston and told him he would not be at school for the rest of the week. Mr. Twitty asked for the reason, and respondent informed him that he was going to Washington, D.C. for President Carter's inauguration. Twitty told respondent to call Mr. Tom Zachary, Disston's principal, and notify him of respondent's plans. Respondent did attempt to call Mr. Zachary at his home, but Zachary was out. When Zachary got home, he returned respondent's call, but was unable to reach him. On January 17, 1977, respondent, had one and one-half days remaining which could be charged to sick leave. Respondent did not return to school that week. On January 21, 1977, a Friday, the Pinellas County schools were closed due to cold weather. This decision to close the schools was not made by the Superintendent until approximately 9:30 p.m. on January 20, 1977. On Sunday evening, January 23, 1977, respondent again called Mr. Twitty at home and advised him that he would not be returning to duty at Disston on Monday because he was going to the county office to resolve some problems. Respondent telephoned Mr. John Hudson, the assistant superintendent for personnel, on Monday, January 24, 1977, but Hudson was not in. On Tuesday, January 25th, respondent had a doctor's appointment which took about two hours. He did not report to work on this day or for the rest of the school week. On Wednesday, January 26th, respondent spoke with Hudson on the telephone. While Hudson could not recall the substance of this conversation, It was respondent's recollection that Hudson told respondent to report back to Disston on Monday, January 31st. Dr. Douglas McBriarty, petitioner's director of instructional personnel, telephoned respondent on January 27, 1977, and told respondent that he had spoken to Superintendent Sakkis and, by his direction, respondent was to report to work the following morning. Respondent did not report to Disston on January 28th. At the hearing, respondent had no recollection of having talked to Dr. McBriarty on January 27, 1977. On the morning of January 31, 1977, respondent reported to work at Disston. He was called into Principal Zachary's office and was told that Dr. McBriarty would be coming out to the school later to discuss respondent's absence from school. Respondent then went up to his classroom. Assistant principal Twitty came into respondent's classroom and told him that Zachary wanted to see his lesson plans. Feeling that he was being harassed by Zachary, respondent told Twitty that he was leaving school and going to Clearwater to the county offices. As respondent was walking out to his car, Mr. Zachary came out to the parking lot and told respondent not to leave because Dr. McBriarty was coming. Respondent left the school and did not return. By letter dated February 2, 1977, to respondent from Superintendent Sakkis, respondent was notified that he was suspended from his duties at Disston without pay beginning Monday, January 24, 1977, and that it would be recommended to the School Board that he be dismissed. This action was based upon charges that respondent had been guilty of being absent without leave, misconduct in office, gross insubordination and willful neglect of duty. These charges were supplemented and amended by pleadings dated May 25, 1977, and June 27, 1977. Respondent had previously been suspended by the School Board without pay from March 4 through March 19, 1976. This action was based upon misconduct in office in that respondent had been absent without proper authority. (Exhibit No. 2) Prior to being transferred to Disston Middle School in January of 1975,. respondent taught biology and general science courses for five years at Dixie Hollins High School. Kenneth Watson, then principal of Dixie Hollins, had numerous problems with and complaints about respondent. These involved the grading and disciplining of students in his classes, the quality of his teaching, refusal to admit to his class a student who had been given an admission slip by the dean, the school's receipt of telephone calls and messages for respondent unrelated to his teaching assignments and respondent's relationship with his students. Although respondent was the first black teacher at Dixie Hollins, Principal Watson did not conceive respondent's problems to be of a racial nature. He felt that respondent's difficulty was the manner in which he handled students and presented materials to them. Dr. McBriarty observed respondent's classes at Dixie Hollins on three or four occasions and found that respondent was not able to communicate with students and that there was not a satisfactory teaching relationship between respondent and his students. Feeling that respondent was no longer effective at Dixie Hollins and in order to allow him an opportunity to improve his performance, it was determined by respondent's superiors that he should be transferred to Disston Middle School in January of 1975. This was to be a temporary transfer until a position was available in another high school. Prior to his transfer to Disston, respondent ordered from Westinghouse Learning Corporation a biology course instructor's kit for a 30-day on-approval examination. The invoice was addressed to respondent at Dixie Hollins High School, and the total amount due if the materials were not returned within 30 days was $177.25. The merchandise was ordered by respondent without a prior purchase order and was not returned within the 30-day period. When the bill from Westinghouse came to the attention of the school, which was after respondent had been transferred to Disston, inquiries were made. No one seemed to know where the kit was. The materials were finally returned to Westinghouse some months later and the charge was cancelled from the School Board's account. There was no evidence that respondent ever personally requested the school or the county to pay for this material. Although respondent was dissatisfied with being assigned to teach in a middle school in lieu of a high school, his first semester's performance at Disston Middle School was without serious criticism and his principal's appraisal ranged from good to excellent. His problems began when he was reassigned to Disston for the 1975/76 school year, and intensified during the 1976/77 school year. On the "instructional appraisal and improvement form for 1975/76, Principal Tom Zachary rated respondent as unsatisfactory in the areas of classroom management, preparation and organization, and attitude and growth. Zachary urged respondent to take part in middle school certification. Respondent was again assigned to Disston for the 1976/77 school year, although he had requested a transfer to a high school. Due to the poor evaluation for the previous year, in August of 1976, Principal Zachary prepared and discussed with respondent a list of objectives and directives to help improve respondent's instructional abilities and his evaluation for 1976/77. (Exhibits 12 and 13) During the first semester of the 1976/77 school year, several of respondent's superiors visited his classroom. Principal Zachary observed respondent's classes on several consecutive days in November of 1976. During his first days' observation, the students were assigned to copy materials from the blackboard. When he visited the class the following day, no reference was made by respondent to the blackboard material. Zachary found the students to be inattentive to respondent with respondent providing no signs of direction, no continuity and no teaching techniques. In Zachary's opinion, no learning was taking place and respondent's classes were completely disorganized. Area assistant superintendent Lee Benjamin observed three of respondent's classes on December 14, 1976. While he found the second period class, a class of higher ability, to be satisfactory, the first and third period classes were observed to be chaotic with no real learning or discipline occurring. Mr. Benjamin felt that the students did not understand what the assignment was due to the unclear nature of respondent's instructions. It was Benjamin's opinion that respondent had great difficulty with teaching and discipline and therefore was not effective. In early January of 1977, science supervisor William Beggs visited three of respondent's classes. While he found the second period class to have some degree of order and direction, the first and third period classes were observed to be highly disorganized. The students did not appear to understand what they were supposed to accomplish and respondent was not adhering to his lesson plans. Upon a review of respondent's lesson plans, Beggs did not feel that respondent was covering the subject matters expected of a seventh grade life science course. In late November of 1976, respondent was involved with the TORC (teacher renewal) program. Dr. Shelby Ridel, a resource teacher for petitioner, observed respondent's classes to be utterly chaotic, with no pattern or continuity in the tasks to be performed. The students were confused by the assignments given them, and respondent would not answer their questions. He often sent students out to the hall for disciplinary reasons. While respondent appeared cooperative with and receptive to the changes suggested by Dr. Ridel, she saw no real improvement in his classes over the several weeks she worked with respondent. She felt that respondent's greatest problem was classroom management. Assistant Principal Twitty, who was responsible for the discipline of Disston students, experienced more than usual discipline problems with respondent's classes. Respondent was told on numerous occasions not to put students out in the hall for disciplinary reasons. Nevertheless, he continued to do so. Such action not only violated school policy; it also was disruptive to teachers in nearby classrooms. Along with several other teachers, respondent was assigned to an interdisciplinary team to work with students and their parents. As a part of his responsibilities, he was to prepare the science section of a newsletter. He often failed to attend the team meetings and, on at least one occasion, he failed to prepare his section of the newsletter. Prior to his departure from Disston in January of 1977, respondent had checked out a tape recorder and several books from the school library. He had also borrowed from Dr. Ridel a seventh grade science curriculum guide. The tape recorder was returned by respondent in April of 1977, and the other items were not returned until June or July, 1977. Respondent's explanation for this delay was that no one had requested the return of these materials and that he did not want to go back to Disston after his suspension. Respondent admitted that his classes gave the appearance of being chaotic and disorganized. It was his explanation that he utilized an individual, systems approach to teach his students and that his superiors did not understand or approve of this teaching technique. He further explained the adverse reaction by his superiors to his classroom techniques by emphasizing the lack of teaching materials and equipment made available to him at Disston, his inexperience in teaching sixth and seventh grade students and his desire to return to high school teaching.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that respondent's teaching contract be cancelled and that he be dismissed as an employee of the Pinellas County school system. Respectfully submitted and entered this 26th day of October, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: B. Edwin Johnson, Esquire Post Office Box 4688 Clearwater, Florida 33518 George M. Osborne, Esquire Rutland Central Bank Building 55 Fifth Street South St. Petersburg, Florida 33701 Ronald G. Meyer, Esquire Suite 990, Lincoln Center 5401 West Kennedy Boulevard Tampa, Florida 33609
Findings Of Fact The parties stipulated that for Fiscal Year 1987-1988, the vocational- technical-adult education division of the Pinellas County Schools suffered a $7,000,000.00 budget deficit. The parties further agreed that if Dr. Cecil Boris, Executive Assistant Superintendent for Curriculum and Instruction were present, she would testify that she determined that as a result of the budget deficit, it would be necessary to eliminate $1,000,000.00 from the budget for the 1988-1989 fiscal year. She instructed her staff to implement that reduction based on two considerations. The first involved the cost effectiveness of individual programs and the second related to the need for the school system to service the community. The parties further agreed that in their respective departments, Mr. Poole and Mr. Muckle were the least senior instructors. Mr. Poole and Mr. Muckle both were continuing contract teachers at PVTI. Mr. Poole taught welding and Mr. Muckle taught heating, ventilation, and air conditioning. The terms of their employment are governed by the Agreement between The School Board of Pinellas County and the Pinellas Classroom Teachers Association, (Union), for 1985-1988. Other than the slots occupied by both Respondents as described above, and with the exception that as to Mr. Poole, a possible slot for him existed at SPVTI, there were and are no other open slots within the school system for which either Respondent is certified to teach. The parties agreed that the use of the term "open" means unoccupied by a continuing contract teacher or a teacher serving under a professional service contract. The parties further agreed that negotiations were conducted by the School Board with each Respondent in an effort to place him in other positions subsequent to his termination but the negotiations were unsuccessful. Pertinent Florida statutes relative to the issue here indicate that unless a teacher's contract is terminated for cause, it must be terminated at the end of the school year. Though the contracts of Mr. Poole and Mr. Muckle were not so terminated at the end of a school year, the parties agreed that failure was not and would not be raised as a defense to their termination. In November or December of each year, the various county school boards, including Petitioner, receive from the State the number of full time equivalents, (FTEs) they will be authorized for the following school year. A FTE equates to 900 hours of instruction per pupil and is authorized in various categories, including secondary education, post-secondary education, adult education, etc. If the Board feels the authorization allotted to it is inadequate or erroneous, it can appeal that allotment. Ordinarily, however, once the number of FTEs is received, the Board then examines the various programs it proposes to offer and establishes the number of units which it can employ for the coming school year. A unit equates to one full-time teacher. In addition, on the basis of the FTE authorization, the Board can figure what part time hour programs it can offer by the number of hours available to it. The post-secondary vocational-technical-adult education area is divided into several basic curriculum areas including, but not limited to, business education, distributive education, agricultural education, building trades, and health occupation education. The areas are not all funded equally but are weighted on the basis of projected student population relating to FTEs. The weights change year by year and the effect of weighting creates, in some cases, an opportunity to have a lower teacher/pupil ratio, (TPR). Some areas, by law, require lower TPRs. As a result, the weight for these programs is higher. Conversely, if the requirement is not as high, then the weighting given to the FTE is lower. When the Pinellas County School Board received its authorization for FTEs, a staff model implementing these authorizations was prepared by Dr. Herbert Ross, Assistant Superintendent for Vocational-Technical-Adult Education, under Dr. Boris' direction. This staff model, which defines where the FTEs are to be assigned, is prepared by the staff which, in doing so, evaluates the prior years programs, the TPR, the placement of students, and the future of the various authorized programs based on input from the various school advisory committees. This staffing model, when promulgated, is not fixed. If additional economies can be generated as a result of factors which occur later on in the school year, these economies will be implemented. By the same token, if a vacancy occurs subsequent to the preparation of the staffing model which does not warrant replacement based on projections of student population, the Board will not hire a replacement. The staff model pertinent to this case, prepared by the Division of Curriculum and Instruction, as it related to vocational teachers, reflects that SPVTI's staffing level for vocational teachers was to be reduced from 109 to 102 (7 teachers), and PVTI's teacher staffing was to be reduced from 120 to 111, (9 teachers). Elimination of these 16 teacher positions would result in a savings of $518,400.00. The entire reduction generated by staff reductions throughout the Division of Curriculum and Instruction totaled $1,085,612.00. The reductions identified in the staffing summary were based on the 1988 student load reports and the registrar's reports of enrollment in the various schools. Student load reports were not the sole factor considered. TPR's were also considered as were the number of sections in a program, (a program with one section only, involving one instructor, would not likely be cut as to do so would result in the loss of the entire expertise in that area), the various course placement records, the need for the course within the community, and other factors of a similar nature. When the evaluations were made, individual instructors were considered. The determination as to which programs required cuts generally resulted in identification of those programs with the lowest TPR being singled out for reduction. In this regard, Counsel for Respondent strongly contested Mr. Wagner's analysis of which programs were cut and why. Documentation prepared by her from records furnished by the Board in response to discovery would tend to indicate that many programs with a much lower TPR than either that of Mr. Muckle or Mr. Poole's classes were spared reduction while Poole's and Muckle's programs were cut. Mr. Wagner logically and reasonably justified each one of the judgement calls he made in determining whether a particular program should or should not be cut and no evidence was presented by Respondents to indicate that his judgement was incorrect or unsupported. Neither Mr. Wagner nor Dr. Ross played any part in the identification of the individuals who were to be terminated. Once the programs to be reduced were identified, they were forwarded to the school district personnel officer where identification of individual instructors was made on the basis of number of students, number of teachers, and projections for the future. Both the welding program, in which Mr. Poole teaches, and the heating, ventilating and air conditioning program, in which Mr. Muckle teaches, are in the same weighted category of courses, (trade and industrial). Based on the weight factors for trade and industrial courses, a unit, (teacher), needs a 12 to 14 TPR of full time students or part time equivalents. In making his identification of programs to be reduced, Mr. Wagner relied on several documents produced within his facility. The first is the registrar produced enrollment documents reflecting each course's student enrollment by nine week period, (quintmester or quint), for the prior two years. These quint rolls are prepared at the opening of each quint by the registrar from registration forms submitted by students for each class in session. As students come and go during the quint, adjustments are made as required. These forms, however, give the student enrollment only at the beginning of the term, and in order to get an accurate figure of class enrollment at any given time, Mr. Wagner periodically requests his instructors to prepare student load reports which list, by class period, the number of students each instructor has enrolled in his class and present on the day the report is submitted. Since some students are full time and some only part time, in determining the TPR, 3 part time students equal 1 full time student. This is a reasonable method of analysis. After making his study, Mr. Wagner identified the heating, ventilation, and air conditioning courses and the welding courses for reduction because these two technologies had been suffering a decline over several years. In fact, Mr. Muckle was warned that his job might be in jeopardy the prior year. In addition, whereas the institute had been previously getting central office support for various programs during a period of decline, this support was no longer forthcoming. When Wagner recommended cuts to the district personnel office, his recommendation was to cut a unit in the department. The choice of instructor was based upon seniority. The TPR in the heating, ventilating and air conditioning program had shown a pattern of continuous decline and enrollment at the time of identification was even lower than in previous years. Major appliances, a part of that program, had suffered a reduction through retirement of an instructor during the past year and this year, with the number of students enrolled being even smaller, it was necessary to cut an additional instructor. This same situation applied to the welding technology where though there was higher fluctuations than in heating, ventilating and air conditioning, the pattern of decline was consistent. Because of the impact that reduction has on the instructors within the system, the administration attempts, wherever possible, to do away first with vacancies. When those are gone, the remaining necessary cuts are attempted through attrition. In the instant case, Mr. Wagner cut two open units and got three more by not replacing retirements. Once these five units were cut, he was forced to look to annual contract teachers. A teacher who resigned was not replaced. Finally, when cuts were still required, it became necessary to look to continuing contract teachers to make up the difference between the six spaces mentioned above and the sixteen needed. Night course programs cannot be considered in the same category with day programs as they are "supplemental" programs. Teachers within these programs are usually part time teachers hired at an hourly rate. Mr. Wagner did not consider placing those teachers identified for cutting into the night program as teachers. Generally an instructor under continuing contract which calls for 25 hours of instruction per week cannot get enough teaching hours in a night program, (four nights per week, at four hours per night), to make absorption of the remaining nine hours cost efficient. Mr. Poole was not the only instructor identified for cut in the welding program. At the beginning of the identification process, four teachers were in the program, but Mr. Poole, the most junior, was identified and his position cut. That left three instructors. By May, 1988, Mr. Wagner had to recommend another reduction in that program, reducing the number to two and the prognosis was for even further decline. Even with the reductions imposed and identified for future imposition, it would appear that the welding program was not cost effective, notwithstanding Mr. Poole's testimony, uncontroverted, that it was well received in the community and the placement record for students coming out of the program was good. The May/June 1988 enrollment figures showed 25 students in the programs. This is just enough for two instructor positions. Consequently, when Mr. Wagner identified the third unit, rather than cut it, he transferred it to SPVTI along with the incumbent instructor effective July 1, 1988, the start of the 1988/1989 fiscal year. Mr. Poole was junior to that instructor. Quint reports for the HVAC program showed for the January - March 1988 period 49 students in the program with 7 teachers, generating a TPR of 7. In the previous year, there were 69 students at the beginning of the school year and during the same months of that year, the count was 75 students. Mr. Wagner projected that the student population would go down even further in the future. As for the welding program, during the January - March 1988 period, the program served 28 students with 4 teachers. At the beginning of the school year, the student population was 29 and during the same period for the previous year, it was 33. Heating, ventilation, and air conditioning and welding were not the only programs identified for reduction during this round of budget cuts. Several others, including electromechanical studies and practical nursing were also reduced as were the architecture/civil program. All of these had TPRs of 10 or less. No program with a TPR of over 10 was affected by the cuts. Once Mr. Muckle and Mr. Poole were identified by the district personnel office for cut, Mr. Wagner looked to see if, consistent with their certification, they could be moved into another department. Mr. Poole is certified in welding and Mr. Muckle is certified in heating and air conditioning. Both are certified in related technology. However, both instructors are continuing contract teachers and changing to a related technology is not normally done for continuing contract instructors. Several departments at PVTI which have a lower TPR than welding and HVAC were not affected. In one case, Mr. Wagner reduced a teacher to a 10 month contract from a 12 month contract status and also generated 39 more part time students in an effort to raise the TPR and keep the course. One-teacher departments, even with a lower TPR, were kept open in order not to lose the expertise. In other cases, the nature of the student population involved might have justified keeping a course open even with a low TPR, (handicap). The determination as to where to impose cuts was, in most cases, a question of judgement wherein Mr. Wagner, as Director of the school, had to consider other factors in addition to the TPR in deciding where to recommend the cuts. Mr. Poole had previously taught at night and was willing to again teach at night on a part time basis. However, he had chosen to withdraw from teaching night classes in the past and notwithstanding he stated he had offered to teach them again, he did not communicate this to Wagner. As to whether Poole could be reassigned to the welding program at SPVTI, there are currently two instructors, (including a transfer in from PVTI), on board and at the close of July, 1988, there were only 9 or 10 students for both teachers. This does not justify a third teaching position for Mr. Poole to fill. Respondents, offered several statistical surveys of teacher/pupil ratios which indicate there are numerous programs within the school system which appear to have lower TPRs than either the welding or HVAC programs. However, numerous factors other than TPR were considered in determining and identifying various programs for reduction. There has been no evidence whatever to indicate that Mr. Wagner's judgement was inaccurate, incorrect, or flawed. There was no evidence that his decisions were either arbitrary or capricious or based on an improper attempt to impose an adverse action on either Respondent or to improperly give benefit to others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the termination of employment of Respondents Jeffrey Muckle and Thomas Poole be upheld and their employment contracts with the School Board of Pinellas County be cancelled. RECOMMENDED this 29th day of September, 1988, 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 29th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-2005, 88-2008 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1 - 2. Accepted and incorporated herein. 3 - 4. Accepted and incorporated herein. 5 - 6. Accepted and incorporated herein. 7. Accepted and incorporated herein. 8 - 9. Accepted and incorporated herein. 10 - 11. Accepted and incorporated herein. 12 - 13. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. 16 - 23. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. For the Respondents: 1 - 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Sentence one is rejected as contra to the weight of the evidence. The remainder is accepted. 7 - 8. Accepted and incorporated herein. 9 - 10. Accepted. 11 - 12. Accepted. Rejected. Information is available. The issue is one of credibility and weight. Rejected and irrelevant. Rejected. Petitioner admits some records are not complete. The issue, however, is not one of statistics but of concept and the evidence is clear that Mr. Wagner's decision was based on reliable evidence which fairly presented the overall picture. Rejected and irrelevant. Conclusion in last sentence is rejected. 18 - 19. Accepted but irrelevant. Accepted but not controlling. Accepted and incorporated herein. Explained. Accepted. Accepted and incorporated herein. Accepted but not controlling. Accepted. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618-4688 Charleen C. Ramus, Esquire Kelly and McKee, P.A. 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638
Findings Of Fact Upon consideration of the evidence submitted at hearing, the following relevant facts are found: Petitioner was a candidate for the Cosmetology Instruction Examination (Examination) given by Respondent on March 12-13, 1988. The Examination consisted of a written portion and a classroom presentation portion. Petitioner is not contesting his passing score on the written portion of the Examination. The classroom presentation portion of the Examination is divided into two parts, the lecture and demonstration portions. Respondent's notification to Petitioner indicated that he had obtained the score of 76 on the demonstration and a score of 63.6 on the lecture portion when, in fact, the Petitioner had scored just the opposite, 76 on the lecture and 63.6 on demonstration. The parties stipulated to this at the hearing. However, the correction of this error did not change Petitioner's overall grade of 70 on the classroom presentation portion of the Examination since the two scores are added together and divided by two to obtain the overall score. The minimum passing score for licensure in Florida is 75. Lecture On criteria number 5: Explained technical words, none of the graders gave Petitioner any points. Petitioner contends that he explained the necessary technical terms of words and points out places in the transcript of the tape where he explained certain terms. However, these was insufficient evidence to show those terms or words to be the technical terms or words required to be explained or if he used the required terms or words elsewhere in his lecture. On criteria number 12: Presented with minimal notes, grader 14 did not give Petitioner any points because he felt that Petitioner read from his notes and visual aids. Petitioner contends that because graders 4 and 6 gave him 2 and 4 points, respectively, on the same criteria, then grader 14 should have given him at least 2 points. There was insufficient evidence to support this contention. Demonstration On criteria number 6: Discussed safety precaution, Petitioner received 5, 2 1/2 and 0 points from graders 23, 19 and 18, respectively. Petitioner contends that he should have received 5 points from each grader and points to certain portions of the transcript of the tape to support this contention. A review of those portions of the transcript indicates that Petitioner discussed safety precautions under certain situations. However, there was insufficient evidence to show that Petitioner covered all areas of safety precautions required by the examination. Therefore, there is no basis for changing the scores given by graders 19 and 18. On criteria number 7: Discussed sanitation and sterilization, Petitioner was given 0 points by all of the graders. Petitioner contends that he should have been given 5 points by each of the graders. However, there was insufficient evidence to support changing all three, or any one of the graders' score. On criteria number 11: Outlined stems to perform, Petitioner received 0, 5 and 2 1/2 points from graders 23, 19 and 18, respectively. Petitioner contends that he should have received 5 points from each grader and points to portions of the tape transcript to support such contention. A review of those portions does not reveal sufficient evidence to support Petitioner's contention or to warrant changing the grades given by graders 23 and 18. On criteria number 14: Presented with minimal reference to notes, Petitioner received 0, 5 and 0 points from graders 23, 19 and 18, respectively. Petitioner contends that the points given by graders 23 and 18 should be changed from 0 to 2 1/2 points each, and points to certain portions of the tape transcript to support his position. A review of that portion of the transcript does not reveal sufficient evidence to support changing the points given by graders 23 and 18. On criteria number 16: Summarized topic, Petitioner received 0, 5 and 0 points from graders 23, 19 and 18, respectively. Petitioner contends that his summary should have gained him 5 points from each grader and points to what he considers summarizing the topic in the tape transcript. A review of Petitioner's summary does not reveal evidence sufficient to support changing the grades of graders 23 and 18. On criteria number 19: Presented in interesting manner, Petitioner received 0, 4 and 0 points from graders 23, 19 and 18, respectively. Petitioner contends that because grader 19 found it interesting enough to give him 4 points, then graders 23 and 18 should have given him at least 2 points. There was insufficient evidence to support this position. On criteria number 21: Lesson plan followed, Petitioner received 0, 5 and 0 points from graders 23, 19 and 18, respectively. There is insufficient evidence to show that graders 23 and 18 were incorrect in assigning 0 points for Petitioner's efforts in regard to this criteria. Petitioner's lesson plan did not conform to the instructions to the candidates for the lesson plan preparation in the notice to appear and, as a result, Petitioner's lecture and demonstration were difficult to reconcile with the grading criteria in the instructions to the graders. The graders' scores were within an expected deviation and were fair a representation of Petitioner's performance.
Recommendation Having considered the foregoing findings of fact, conclusions of law, evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board of Cosmetology enter a Final Order dismissing the Petition and finding that the Petitioner has failed to make a satisfactory score on the Classroom Presentation portion of the Cosmetology Instructor Examination. DONE and ENTERED this 14th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th of March, 1989. APPENDIX TO RECOMMENDED IN CASE NO. 88-2464 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 5. Not a finding of fact but rather a discussion of matters presented. Not a finding of fact but rather a discussion of matters presented Not material or relevant. Not material or relevant. Not material or relevant or is stated as a conclusion. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1-2. Covered in Background material. 3. Subordinate to facts actually found in this Recommended Order. 3-4. Adopted in Finding of Fact 15. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 16. COPIES FURNISHED: Vincent Turano 212 Dune Circle New Smyrna Beach, Florida 32069 William A. Leffler, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Myrtle Aase Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Respondent is guilty of misconduct in office or wilful neglect of duty as a teacher.
Findings Of Fact Respondent is a professional chef. After teaching at two schools for 17 years in Massachusetts, Respondent moved to Florida and became a culinary arts instructor at Mid-Florida Tech in January, 1990. Mid-Florida Tech is a vocational educational center operated by Respondent, evidently for students of at least high school age. Respondent was employed at Mid-Florida Tech as a culinary arts instructor through May, 1993. For the 1992-93 school year, Respondent was employed under a professional service contract. Typically, the culinary arts program leads to a certificate certifying that the student has completed the course requirements in training to become a chef. The course normally takes 18 months of classwork, which consists mostly of practical exercises by the students preparing various types of food. There is little lecturing in the class, which is located in a very large institutional kitchen with four or five workstations. There is an adjoining dining room in which the students can serve the meals that they have prepared. There is also a walk-in refrigerator in which various foods are stored. Respondent has an office adjoining the kitchen area. The office has a large window with no blind, so that it is visible from almost all points within the kitchen. Respondent taught the students and was assisted on an occasional basis by two visiting chefs. Much of the classwork, which took place daily from about 7:30 am to 2:00 P.M., consisted of students preparing food under the direct supervision of Respondent, who would circulate among workstations through the vast kitchen. The class during the 1992-93 school year was loosely structured. Several of the students were special education students. Some students presented behavioral problems. Some students were adults who were expressly interested in retraining for a new career. For a variety of reasons, attendance was sometimes irregular as some students merely cut the class and others could not always attend due to the conflicting demands of children and jobs. J. D. became a student at Mid-Florida Tech in February, 1993. She enrolled in the culinary arts department and was assigned to Respondent's class. The mother of four children, J. D. received financial assistance from a private industry council and intended to obtain her culinary certificate in order to begin a new career and better support her children financially. J. D. became uncomfortable in Respondent's classroom due to the sexual tone of Respondent's comments. Respondent interspersed numerous sexual jokes and innuendos with his teaching. Amid the confusion that often prevailed in the class, Respondent would circulate, "entertaining" the students with various comments and behaviors, such as a recurring imitation of stereotypical behavior associated with male homosexuals. In this routine, Respondent would place one hand on his hip, hold another hand in front of him with a limp wrist, raise his voice an octave, and sometimes muse to the class whether he wanted a boy or a girl today. At some point, the sexual humor became vulgar by any reasonable standard. Respondent one time recounted to J. D. that he had a dream that she was sitting on his face while he was having oral sex with her and, when he awoke, he found his cat sleeping on his face. Respondent recounted versions of this dream to J. D. on two occasions: one time they were in the kitchen out of hearing range of other students in the area and another time in the presence of another male classmate E. K., who was a good friend of J. D. On another occasion, J. D. was speaking to Respondent about an upcoming test. There were various competencies that each student had to demonstrate to Respondent's satisfaction in order to progress to the point where they could take the final test leading to the certificate at the conclusion of the program. Respondent assured her that if she had sex with him "three different ways" that she would not have to take the test. Another time, as J. D. and Respondent were talking just outside of his office, he said to her, "Come behind my desk and given me some head." By "head," Respondent was referring to oral sex. On one other occasion, Respondent greeted J. D. with the remark that she looked hot and he wanted to peel the pants off her. The record does not disclose any additional remarks that Respondent made to J. D. directly or to the women in the class generally. However, he did, on more than one occasion, moan as J. D. walked by him. Three times Respondent initiated offensive touching. One time, he followed J. D. into the walk-in refrigerator and briefly grabbed her buttocks. Another time he passed by her closer than was necessary and brushed her breasts with his hand or shoulder. Another time he squeezed against her body as she and other students were circled around a workstation watching a demonstration by a visiting chef. The above-described sexual behavior was unwelcome by J. D., who found Respondent repulsive. In part due to a vast difference in their size and personalities--Respondent is more extroverted and J. D. more introverted--J. D. felt intimidated by Respondent. She did not ask him to stop this offensive behavior for fear of offending him and jeopardizing her ability to obtain a chef's certificate. She did not complain to other teachers or administrators until May, 1993, for the same reasons. Due to her increasing repulsion at Respondent's behavior and the demands of a new job, J. D.`s attendance fell off somewhat toward the end of Respondent's employment with Mid- Florida Tech. There is no doubt that Respondent's behavior, regardless of his intentions, interfered with J. D.'s education and would have interfered with the education of any reasonable person under the circumstances. Another perspective on Respondent's behavior during the 1992-93 school year is provided by a female staff person, Clair Blanchard. Ms. Blanchard is a special needs coordinator, whose responsibilities required that she visit Respondent's classroom periodically to monitor the progress of the special education students attending Respondent's class. Respondent's routine with Ms. Blanchard was to hang over her at Wednesday luncheons, in front of all the other students, singing in imitation of the entertainer, Dean Martin. Respondent would get in Ms. Blanchard's face and tell her she was beautiful. He would wrap his massive arms around her, as well as other females in Ms. Blanchard's presence. Ms. Blanchard repeatedly demanded that Respondent stop hugging her and he ignored her. On another occasion, Ms. Blanchard and Respondent had a conference with a male student, whose misbehavior jeopardized his continued enrollment at Mid-Florida Tech. The purpose of the meeting was to discuss the student's behavior and warn him that he could be expelled if he did not straighten out. Despite the gravity of the situation, Respondent undercut Ms. Blanchard's role by constantly blowing her kisses across the desk in full view of the student. A situation unrelated to the present case led to Respondent's removal from the classroom in May, 1993. Respondent did not endear himself to certain administrators at Mid-Florida Tech for a variety of reasons, such as his involvement of the union in a pay issue, flamboyant classroom behavior, and loose classroom management. In any event, a long-standing dispute concerning Respondent's contract status came to a head toward the end of the 1992-93 school year. Fearing that Respondent would not be hired to teach the following year, various students became involved in an effort to retain Respondent. Many of the students were quite fond of Respondent. Some of the students feared only that the culinary arts course would be discontinued if Respondent were not rehired. It is unclear to what extent Respondent was involved with the students' efforts, but he did telephone a newspaper reporter, hand the phone to J. D., and ask her to tell the reporter what was going on and express her support for Respondent. J. D. did as instructed, and the reporter told her that there was no story there. Sensing that Respondent was behind the students' efforts to allow him to keep his job, the administration relieved Respondent of his teaching duties on May 14, 1993, and assigned him administrative duties until the end of the school year. Respondent's replacement was Valerie Shelton, who was a female teacher in the culinary arts program. Two weeks after Ms. Shelton assumed Respondent's duties, J. D. felt sufficiently emboldened to complain to her about Respondent. Ms. Shelton arranged for the still-reluctant J. D. to speak with an administrator. Following an investigation, Petitioner terminated Respondent's contract on the grounds set forth in the Administrative Complaint. Respondent provided no insight into his behavior, as he elected at the hearing to deny that any of the above-described events took place. Likely, Respondent intended to be humorous with at least some of his comments. As J. D. reported to Ms. Shelton, J. D. herself believed at first that Respondent's behavior was, although in poor taste, only joking. However, as the comments became more vulgar and accompanied by offensive touching, J. D. was more profoundly affected by Respondent's behavior. Regardless of Respondent's true intent, J. D. became more reluctant to attend class and contemplated dropping out of the culinary arts program. Regardless of Respondent's specific intent or state of mind when engaging in this behavior, the reaction of J. D. was reasonable under the circumstances. Respondent's conduct constitutes misconduct in office as it pertains to J. D. Respondent's misconduct, as described above, was so serious as to impair his effectiveness as a teacher in the school system. In addition to the effect that he had on J. D., Respondent undercut the authority of another teacher, Ms. Blanchard, and thereby implicitly condoned student misbehavior and explicitly reinforced the sexually abusive classroom atmosphere. Despite Ms. Blanchard's protests, Respondent continued to hug her repeatedly in the presence of students and treated her in a demeaning manner based on sex. This behavior undermined her authority with the special needs students and, more importantly, with the other students who periodically mistreated the special needs students.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Orange County School Board enter a final order terminating Respondent's contract for misconduct in office. ENTERED on April 4, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1994. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 93-4860 Rulings on Petitioner's Proposed Findings 1-2: adopted or adopted in substance. 3-4: rejected as recitation of evidence. 5: rejected as subordinate. 6: rejected as recitation of evidence. 7-22: rejected as subordinate. 23-28: adopted or adopted in substance. 29: rejected as subordinate. 30-31: adopted or adopted in substance. 32: rejected as subordinate. 33: rejected as recitation of evidence. 34: adopted or adopted in substance. 35-36: rejected as subordinate. 37-38: rejected as irrelevant. 39-41: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-3: adopted or adopted in substance. 4-5: rejected as subordinate. 6-9: adopted or adopted in substance. 10-11: rejected as recitation of evidence and subordinate. 12-13 (first and second sentences): adopted or adopted in substance. 13 (third sentence): rejected as unsupported by the appropriate weight of the evidence. 14: rejected as subordinate. 15-16: rejected as unsupported by the appropriate weight of the evidence. 17: rejected as unsupported by the appropriate weight of the evidence to the extent that the effect of Respondent's offensive behavior is discounted. 18: rejected as irrelevant. 19-27: rejected as subordinate. COPIES FURNISHED: Hon. Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Donald Shaw Superintendent, Orange County School District P.O. Box 271 Orlando, Florida 32802-0271 Rosanna J. Lee Honigman, Miller 390 Orange Ave., Ste. 1300 Orlando, Florida 32801-1677 Ronald G. Meyer Anthony D. Demma Meyer and Brooks, P.A. P.O. Box 1547 Tallahassee, Florida 32302 Frank C. Kruppenbacher Kruppenbacher & Associates, P.A. P.O. Box 3471 Orlando, Florida 32801-3685
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c), or (g), Florida Statutes (2013),2/ and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Respondent holds a master's degree in early childhood education and is a teacher certified by the State of Florida in the area of elementary education. Respondent is also certified to teach language arts and social studies in middle school. At all times material to the allegations in this case, Respondent was employed by the Sarasota County School District (SCSD). During the 2005-2006, 2006-2007, 2009-2010, and 2010- 2011 school years, Respondent taught kindergarten at North Port Toledo Blade Elementary School (Toledo). During the 2007-2008 and 2008-2009 school years, Respondent taught first grade at Toledo. Respondent executed a professional service contract of employment for the SCSD on July 1, 2008, approximately a month before the start of the 2008-2009 school year. TEACHER EVALUATIONS In the SCSD during the applicable time, the instrument used for teacher evaluations was called the Professional Rubrics Investing and Developing Educator Excellence (PRIDE) performance evaluation system which contains a Florida Performance Measurement System (FPMS) Summative Observation Instrument, a Performance Improvement Plan (PIP) Checklist, and a PIP Classroom Instructional Level 1 & 2 form. Utilizing the PRIDE, SCSD teachers were required to demonstrate competency in four Domains. Each domain encompassed a specific aspect of teaching: I- Creating a Culture for Learning; II- Planning for Success; III- Instruction and Assessing Student Achievement; and IV- Communicating Professional Commitment; and each domain had several subparts. During an observation/evaluation, a teacher could receive one of four ratings: accomplished, developing, needs improvement, or unsatisfactory. A teacher who receives two or more "unsatisfactory" ratings in PRIDE domains I, II, or III, could be subject to termination from the SCSD. Following classroom observations, should a school administrator determine there are concerns regarding a teacher's performance, a PIP conference (conference) may be called. Those attending the conference are the teacher, a union representative,6/ the school's administrator(s), and a district representative. During the conference, the school's administrator discusses the classroom observations of what was working or not working in the teacher's classroom. The PIP is fully explained to the teacher. A PIP is for teachers who have been identified by their school administrators as having some performance challenges. Its purpose is to provide confidential support via a coach to those teachers who have been identified as performing below acceptable standards. Other support services that can be provided to a teacher include: an opportunity to observe a highly effective similar classroom of students; additional professional development courses; and regularly scheduled PIP conferences to review what has been observed between each conference. The PIP goal is to assist the teacher to become an effective and efficient teacher in the classroom. A PIP is generally established for two school years; however, it may be shortened if the teacher demonstrates improvement in the areas of concern. Once a PIP is in place, the school principal assumes the responsibility of observing and evaluating the teacher. After the conference, a coach is identified, contacted and asked to serve as the teacher's coach. As the PIP progresses, that coach and the school's principal are to provide feedback to the teacher. However, the parties decide the manner in which the feedback is to be provided. There are no set directions for when the principal must provide feedback, except at the regularly scheduled PIP conferences. In the event the teacher's performance has not improved after having a coach and time, an administrator (or administrators) from another school may be called in to observe and evaluate the teacher. This is to ensure that the teacher is evaluated by a neutral third party who is not part of the school's administration. Prior to the PRIDE system, the SCSD used a different evaluation system: the Teacher Performance Appraisal System (TPAS). TPAS provided for pre- and post-observation conferences with the teachers regarding the observations. This system provided timely feedback to the teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(d), Respondent be placed on probation for a period of at least three years with such conditions as the Education Practices Commission may specify. DONE AND ENTERED this 23rd day of May, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2014.
The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of January, 2001.
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 097813, Rank II, Post Graduate, valid through June 30, 1987, covering the areas of Elementary Education, Art Education, Early Child Education, Reading and Junior College. During the 1976-1977 school year Respondent was employed as an elementary school teacher at Astoria Park Elementary School in Leon County, Florida. Petitioner received a suggestion of Respondent's incompetence from school officials in Leon County, Florida, on October 14, 1977, and pursuant to the authority contained in Rule 6A-4.37, Florida Administrative Code, a professional inquiry into the allegation of Respondent's incompetence was conducted. On July 10, 1979, a report was submitted to the Executive Committee of Respondent which recommended that the Commissioner of Education find probable cause to believe that Respondent was guilty of acts constituting grounds for revocation or suspension of her teaching certificate. Pursuant to that recommendation, probable cause was found by the Commissioner on July 13, 1979. The filing of a petition seeking revocation of Respondent's teaching certificate was thereupon directed. On October 5, 1976, Respondent neglected to provide adequate or competent instructional plans for a substitute teacher, even though she had previously been advised by her principal that her absence from her classroom would be necessitated by a professional workshop; that a substitute would be required to conduct her classes; and that instructional plans for substitutes were essential to the accomplishment of the educational goals during her absence. On January 6, 1977, Respondent was warned in writing by her principal that, in accordance with school policy, adequate lesson plans for substitute teachers were necessary in order to insure a continued movement toward instructional goals for her students. Notwithstanding this warning, however, Respondent, during an absence necessitated by illness from January 31, 1977 through February 4, 1977, failed to leave adequate or comprehensible lesson plans and procedures for a substitute teacher. In fact, on various of the days during this time, no lesson plans whatever were left. On December 1, 1976, Respondent failed to deploy audio-visual equipment in a manner in which it could be heard by her class, failed to adequately explain the content of the material presented, and failed to use the equipment in a manner calculated to adequately instruct her students. During this same lesson, Respondent failed to utilize adequate techniques for the management of the behavior of her students, resulting in student behavior which interfered with instruction of her students. During the 1976-1977 school year, Respondent consistently maintained charts and visual teaching aids in her classroom in a disorganized and illogical manner, demonstrated poor enunciation and a lack of plural/singular distinction in the pronunciation of words, demonstrated incorrect letter formation and a lack of continuity of lessons from one day to the next. In addition, at various times during the 1976-1977 school year, in the process of grading and evaluating her class's test papers, homework and standardized test results, Respondent failed to accurately and adequately grade, evaluate and analyze her students' performance. As a result of Respondent's failure in this regard, her students were not properly advised of whether the tasks they had undertaken to learn were adequately understood, and were thus potentially permitted to retain inaccurate concepts of basic skills. Throughout academic year 1976-1977, Respondent consistently failed to utilize available instructional materials and equipment, such as student handouts, mimeograph materials and bulletin boards, in a manner calculated to accomplish the tasks for which those instructional aids were designed. In the use of such instructional aids, Respondent consistently misspelled words, used illegible manuscript, misused words and grammar, passed out sloppily prepared materials, and in general failed to utilize teaching techniques sufficient to assure that a particular task or subject was or could be understood by her students. In addition, Respondent consistently maintained her classroom in an unkempt and disorganized condition, despite reasonable requests and warnings from her principal. During this period Respondent constantly rearranged desks and seats in her classroom, causing confusion, disorientation, and general turbulence among her students. On December 3, 1976, Respondent publicly embarrassed one of her students by calling the student a "liar" when the student told Respondent that she had turned in a work assignment to Respondent. Respondent was apparently unable to locate the student's work at that time, but later found the paper on Respondent's desk. Despite this mistake, Respondent failed to apologize to the student or retract her criticism. At various times during the 1976-1977 school year, Respondent inflicted corporal punishment on her students by yanking them from their seats and/or shaking them, even though Respondent had repeatedly been instructed by her principal not to touch a student in any manner except as prescribed by school policy, and in the presence of other instructional or administrative personnel. Throughout academic year 1976-1977, until remedial action was taken by her principal, Respondent consistently failed to adequately and accurately explain her students' progress and goal achievement through evaluative methods and procedures made available to the students' parents. Further, Respondent consistently exhibited during this period incorrect and inappropriate grammar in class and in reports and other communications with her colleagues and students' parents. In addition, Respondent also displayed a cumulative lack of proper grammar and instructional skills, as well as a persistent lack of basic knowledge and inaccuracy in transmitting information in subject areas assigned to her class. On February 1, 1977, Respondent, in violation of school and district policy of which she had repeatedly been reminded, failed to report for school and failed to notify appropriate persons that she would be absent. Respondent was repeatedly counselled by her supervisors concerning her performance in an attempt to provide remedial assistance and advice. Respondent was issued repeated warnings that her persistence in the patterns and practices of conduct set forth above would result in disciplinary proceedings being instituted against her. As indicated earlier in this order, Respondent has asserted, as a defense to allegations of incompetency, that she suffered from medical and/or emotional or mental impairments during the 1976-1977 school year. However, the only medical testimony of record in this proceeding establishes that Respondent displays no gross psychiatric deviations, and is suffering from no diagnosable psychiatric disease.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as a teacher, for alleged violations of various School Board rules and policies, as outlined in the Superintendent’s letter to Respondent, dated June 15, 2009.
Findings Of Fact Petitioner is the School Board of Sarasota County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools within Sarasota County, in accordance with Part II, Chapter 1001, Florida Statutes (2009). The School is a middle school operated by Petitioner. Petitioner employed Respondent, Brian Berry, as a teacher at the School for several years. Respondent taught students with ESE designation. Respondent is an “instructional employee” under the Instructional Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association (“Union”), and Petitioner (July 1, 2006 – June 30, 2009, for the 2008-2009 year)(the “Collective Bargaining Agreement”). Article XXV of the Collective Bargaining Agreement governs disciplinary actions against teachers, including Respondent. The Collective Bargaining Agreement requires there to be just cause for any discipline. Normally, the following progressive discipline steps are administered: (1) verbal reprimand; (2) written reprimand; (3) suspension and, (4) termination. Following progressive discipline is not required “in cases that constitute a real immediate danger to the district or other flagrant violations.” During the 2008-2009 school year, Respondent’s classroom was one of four classrooms arranged in a quadrant fashion around a center internal office that connects the four classrooms to each other. Respondent’s room was in the southwest quadrant. Holmes had the room in the northwest quadrant. Brooks had the room in the southeast quadrant. Like Respondent, Holmes and Brooks taught ESE students. Brooks and Respondent shared a paraprofessional, Collins. Bazenas became the School’s principal in April 2006, and has been its principal since that time. Before resorting to the progressive discipline system, School administration routinely counsel employees on an informal basis when there is a concern. Generally, the counseling occurs as a conversation between the administrator and instructor. This informal counseling is non-punitive. Administrators also use Memorandums of Instruction to clarify expectations. A Memorandum of Instruction is also non-punitive in nature; however, failing to abide by the expectation contained in a Memorandum of Instruction could warrant discipline. Respondent’s prior disciplinary history includes: Verbal Reprimand, dated December 17, 2007, for failing to monitor students. Verbal Reprimand, dated January 19, 2009, for failing to submit student attendance on 39 occasions during the 2008- 2009 school year through January 6, 2009. Written Reprimand, dated January 20, 2009, for failing to follow three separate Memorandums of Instruction concerning posting student attendance and for failing to report student attendance on January 7, 2009. Individual Education Plans During the 2008-2009 school year, Respondent was the case manager responsible for drafting Individual Education Plans (“IEPs”) for several of his students. Under federal law, IEPs must be updated at least once each year. Failing to update an IEP by the time the prior IEP becomes out of date means such IEP is out of compliance. This jeopardizes ESE funding, which comes from state and federal sources. During the 2008-2009 school year, there was an ESE liaison (Cindy Lowery) at the School who routinely and timely reminded case managers, including Respondent, of their IEP responsibilities, important deadlines, and steps necessary to be taken by the case manager. At the beginning of the school year, Lowery explained the procedures to case managers, including Respondent. Respondent received numerous reminders prior to the expiration of each IEP for which he was responsible. The expectations relating to IEP completion were clear and known to case managers, including Respondent, at all relevant times. At all times during the 2008-2009 school year prior to his being placed on administrative leave on March 17, 2009, Respondent had the ability to complete in a timely manner each IEP for which he was responsible. He also had access to all materials and assistance necessary to timely complete each of the IEPs. During school year 2008-2009, Respondent was the case manager and responsible for the IEPs of students A.M. (due 11/27/08; completed 12/1/08); J.G. (due 1/17/09; completed 2/25/09); U.S. (due 1/17/09; completed 2/25/09); J.C. (due 2/20/09; completed 2/25/09); N.C. (due 3/3/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009); B.B. (due 3/11/09; not completed prior to date Respondent was placed on administrative leave on March 17, 2009). Reporting Attendance Teachers are required to take classroom attendance each period and timely post that attendance into the School’s computer program that tracks attendance. This expectation is contained in the School’s staff handbook, which is developed and reviewed annually by a shared-decision making team, composed of administrators, teachers, and community members. Reporting attendance each period is a safety and security matter. Reporting attendance also assists with accountability for funding purposes. During the 2008-2009 school year prior to being placed on administrative leave on March 17, 2009, Respondent failed to report attendance in at least one period on: August 20, 21, 25, 26, 27, 29; September 3, 4, 9 - 12, 15, 16, 22, 26, 30; October 1, 3, 7 - 9, 15, 16, 22, 23, 28, 29; November 6, 7, 12, 18, 20, 21, 25; December 4, 5, 10; January 6, 7; February 19, 24; and March 3, 4, 10, 13, and 16. In all but six of those dates, Respondent failed to report attendance for multiple periods. On October 20, 2008, November 24, 2008, and January 7, 2009, administrators at the School provided Respondent with Memorandums of Instruction reminding Respondent of the need to submit attendance electronically each period. FCAT Proctoring On March 10 and 11, 2009, the FCAT was administered at the School. Respondent was assigned to proctor students who were permitted testing accommodations. Some permitted accommodations included extended testing time and having proctors read questions. Testing of these students occurred in the School’s media center. Another ESE teacher, Aisha Holmes, was also assigned to proctor similar students. Proctors were instructed that they needed to sign-in and sign-out upon entering and leaving the media center; that they could not engage in personal reading; and that they needed to actively supervise the students at all times. A preponderance of evidence supports the finding that Respondent engaged in the following activities contrary to his duties as proctor: Over the two-day proctoring session, Respondent failed to sign-in and sign-out every time that he took a break. Respondent engaged in personal reading and other non-proctoring activities when he was required to be actively proctoring the FCAT. Respondent stood over student S.L.’s shoulder for a time period exceeding two minutes. While Respondent contends that he was trying to determine if S.L. had finished, S.L. had not finished. Respondent’s actions were intimidating to S.L. On the second testing day, Respondent fell asleep on a couch in the media center for a period of time when he should have been actively proctoring. Respondent snored, causing a disturbance to the students engaged in testing activities. While the length of time Respondent slept was in dispute, the evidence demonstrates that it was considerably longer than a brief moment as advanced by Respondent. On the second day of testing, a student spilled juice on that student’s reference sheet. Respondent placed the reference sheet in the microwave but did not monitor the drying process. The microwave scorched the reference sheet, resulting in a burnt smell invading the testing area and causing another disturbance to the students engaged in testing activities. Use of Video with No Learning Objective in Place In February 2009, Respondent showed the movie “Happy Feet” to his class. He concedes that he had no learning objective in mind in showing this video. Although Respondent explained that in his opinion, no learning could be accomplished that day due to the death of a co-teacher’s fiancé, Respondent conceded that he requested no assistance in addressing this situation despite such assistance being available to him. Lesson Plans Teachers are required to prepare lesson plans at least one week in advance. Teachers are also required to have the lesson plan on their desk and available for review. The lesson plan expectations are contained in the School’s staff handbook. The lesson plans are the guiding document for instruction, which requires teachers to give forethought as to the content of their lessons. It is used by teachers to focus their lessons, by administrators to ensure content aligns with teaching objectives, and by substitutes in the absence of the teacher. It is undisputed that the School’s administration repeatedly counseled Respondent to create and have lesson plans available. Respondent failed to have lesson plans completed and available for the week of October 6, November 17, and December 15, 2008, and January 5, January 20 and February 2, 2009. February 3, 2009 Weingarten Hearing On February 3, 2009, Bazenas and Respondent met in a formal, noticed meeting to discuss Respondent’s failure to complete IEPs for Students J.G. and U.S. That meeting also addressed Respondent’s continued failure to comply with school policy on maintaining lesson plans. It is undisputed that Respondent failed to timely complete the IEPs for students J.G. and U.S., and that he failed to comply with the lesson plan requirement. March 16, 2009 Weingarten Hearing On the afternoon of Monday, March 16, 2009, Bazenas and Respondent and others met in a formal, noticed meeting to discuss: (1) Respondent’s failure to complete IEPs for students N.C. and B.B. prior to their IEPs becoming out of compliance; (2) the FCAT proctoring matters; (3) use of the video “Happy Feet” with no learning objective; (4) continued failure to comply with the lesson plan expectation; (5) tardiness on March 9, and March 10, 2009; and (6) use of the girls’ restroom.1 It is undisputed that Respondent failed to complete the IEPs for students N.C. and B.B. in a timely manner, and that he used the video “Happy Feet” with no learning objective in place. During the meeting, Bazenas presented Respondent with the summary of Holmes’ observations of Respondent’s conduct while proctoring the FCAT. Respondent conceded that he was inattentive at times during FCAT proctoring and did fall asleep for some period of time during the FCAT, although he disputes it was for 45 minutes. March 17, 2009, Confrontation On the morning of Tuesday, March 17, 2009, Respondent entered Holmes’ classroom to “discuss” Holmes’ summary of her observations of Respondent during the FCAT. A student, whom Holmes was tutoring, was present in Holmes’ room at the time. Holmes was uncomfortable with Respondent’s insistence on discussing the FCAT matter at that time in front of the student. Holmes advised Respondent that she would talk to him later. Respondent, however, persisted in continuing his challenge to Holmes’ FCAT proctoring observations in front of the student. At that point, Bazenas entered Holmes’s room. Bazenas observed that the situation was “tense” and that Holmes was backed into a corner of the room. Bazenas also observed that the student that was present looked very uncomfortable. At that point, Bazenas, in a reasonable voice, requested that Respondent return to his own classroom to supervise his students. Respondent immediately became upset and began yelling at Bazenas, telling Bazenas not to interrupt him. Respondent approached him and pointed his finger in Bazenas’ face. At that time, Collins was in Brooks’ room. Collins heard shouting coming from the direction of Holmes’ room. Collins proceeded into the center office of the quad. She observed Respondent shouting at Bazenas that he was a “liar” and that Respondent would see Bazenas “in court.” Collins did not hear Bazenas raise his voice. Collins was fearful of Respondent; she had never seen Respondent act in that way. She also testified that Bazenas looked fearful of Respondent. Respondent then proceeded into his classroom and Bazenas followed Respondent into the classroom. He put himself between Respondent and his students, permitting Collins to remove the students from Respondent’s classroom, taking them into Brooks’ classroom. Respondent continued with his emotional outburst during this time. When Bazenas requested that Respondent leave campus immediately, Respondent threatened Bazenas. Bazenas subjectively believed that Respondent’s agitated behavior and his statement to be a threat of violence. Respondent also directed inappropriate comments to his students about Bazenas during his outburst. As Collins brought Respondent’s students into Brooks’ classroom, Collins was shaking and looked very fearful. After all of Respondent’s students were in Brooks’ classroom, Brooks locked the doors. Locking the doors is an unusual occurrence; however, Respondent did leave campus voluntarily. Respondent was immediately placed on administrative leave. Shortly thereafter, a police officer went to Respondent’s house to advise Respondent to stay away from campus. Respondent complied with the request. Respondent’s outburst on March 17, 2009, constituted a real and immediate threat to the School administration, teachers and students and was a flagrant violation of school policies and the State Principles of Professional Conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Sarasota County School Board enter a final order terminating the employment of Respondent from the date Respondent was placed on unpaid leave of absence. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2010.
