The Issue The issue in this case is whether the Respondent, Sharon Lambeth, should be reprimanded and reassigned from her position as Countryside High School principal to a position as a supervisor with the school system's Title I office, at the same rate of pay.
Findings Of Fact The Respondent, Sharon Lambeth, has been involved in the field of education for over 20 years. She moved to Volusia County in 1985 to begin her career in Florida. She began as assistant director of personnel but went through target selection and became an elementary school assistant principal, an elementary school principal, and then the principal of Volusia County's largest high school. She married and moved to Pinellas County in 1993 and was hired as an assistant principal at Gibbs High School for the 1993-94 school year. She was promoted to principal of Countryside High School for the 1994-95 school year. During her tenure in Pinellas County, Lambeth was a very effective principal and generally very well-liked (although, like almost all principals, she had her detractors as well as her supporters.) Lambeth's performance evaluations during her tenure in Pinellas County through May 8, 1998, have been excellent. Lambeth's employment as principal of Countryside High School has been under successive annual contracts with the Pinellas County Schools. The contract for the 1997/98 school year provided, in pertinent part: . . . The Board may, upon recommendation of the Superintendent, transfer and assign the Employee to a similar position in any other location of the district, provided that the duties shall be similar to the duties originally assigned, and the salary shall be heretofore set forth. * * * 5. The Board may suspend or remove the Employee for just cause. The Employee shall not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Employee be entitled to any compensation subsequent to the cancellation of this contract. * * * 11. Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions, hereof, or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice. On April 28, 1998, Lambeth again was appointed to a position for the 1998/99 school year, "subject to assignment and transfer." Lambeth accepted the appointment on May 8, 1998. There exist Pinellas Administrators Association Personnel Practices and Grievance Procedures. These documents were developed jointly by the Superintendent of Schools and the Executive Board of the Pinellas Administrators Association; they were approved by the School Board on July 14, 1976. The Personnel Practices provide in pertinent part: COMPLAINTS A. Complaints, oral or written, involving administrators or supervisors shall be investigated through line offices. A copy of such a complaint shall be immediately forwarded to the employee concerned so that he may respond. The employee shall be entitled to know the name of the person or group making the complaint. * * * TERMINATION Termination for Cause. Administrative and supervisory personnel may be terminated for cause on the same grounds as delineated in F.S. 231.36(6) at the discretion of the School Board. Termination shall include discharge, suspension without pay, demotion in salary or status, or any other action involving fault on the part of such administrator or supervisor. * * * C. Any administrator or supervisor terminated for cause subjected to a personnel action as defined above shall have the right to register his complaint through the Pinellas administrators' grievance procedures. However, the significance of these documents is not clear; nor is it clear that they are still are applicable at this time. They apparently are not duly promulgated School Board policy, and the School Board does not refer to them in the conduct of its employment relationships. They also are not part of Lambeth's employment contract. Even if generally applicable, it also was not clear whether they would apply to administrators who are not members of the Pinellas Administrators Association, and there was no evidence that Lambeth is a member. In August 1997, someone approached Countryside assistant principal, Kathleen Novak, to explain the circumstances of a 1997 graduate. The student was a few points short of the minimum grade required in certain core high school courses by either his college's admission requirements, the National Collegiate Athletic Association's (NCAA's) athletic scholarship requirements, or both. Novak went to her principal, Lambeth, to discuss the matter. Another assistant principal, Paula Flott, also participated in the discussion. The outcome of the discussion was that Lambeth asked Novak and Flott to try to contact "their" teachers (i.e., the teachers "assigned" to them for purposes of supervision and division of duties) to find out if there were any grades that could be raised enough through re-testing to meet the minimum requirements the student needed to meet. Before contacting the teachers, Novak first had occasion to confer with yet another assistant principal, Henry Moore. Moore helped Novak review the student's report cards and identified two grades he thought could be raised enough to give the student the minimum grade required. One was a "mid-point" grade in a history class the student took during his junior year (1995-96). Under School Board Policy 6Gx52-8.24(2)(g): "At the mid-point of each grade level, i.e., 3.5, 2.5, 1.5, .5, it will be the option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Moore also identified a psychology grade from the student's senior year (1996-97) which was borderline. It is not clear from the evidence whether Moore thought it was necessary to contact the history teacher, David Ferguson, about the mid-point grade. Moore understood Countyside's unwritten policy to be that, if a student improved his or her grade during the grading period, a mid-point grade would be increased to the next higher whole number or letter grade unless the teacher went to the principal to justify deviating from the policy. There was some evidence to suggest that Moore thought Lambeth, as principal, could raise the mid-point grade without re-testing; but the evidence was not clear that Moore communicated this to Novak or Lambeth at the time. In any event, Moore testified to his assumption that Novak would next contact the teachers concerning re-evaluation of the two grades. The next day, Novak reported to Lambeth the results of her conversation with Moore. Lambeth decided that the student should re-take the final examinations in both classes. She testified that she instructed Novak to contact the teachers about the re-evaluations and re-testing. Novak denied receiving explicit instructions to contact the teachers at this point. It is found that Novak would not have disregarded a direct instruction to contact the teachers. It is more probable that Lambeth simply instructed Novak to proceed to take care of it and assumed that Novak would contact the teachers. Novak also saw Flott that day. Flott told Novak that Flott had not contacted any of "her" teachers yet. Novak told Flott not to worry about it, that Novak had "taken care of it." Flott assumed Novak meant Novak had contacted the teachers. Actually, Novak meant that, since the two grades Novak and Moore already had been identified were enough, there was no need for Flott to contact any of "her" teachers. At this time during the summer, the teachers were on vacation, and Novak researched files of past exams maintained by the school administration to document grades and reproduced the final exams for the grades she and Moore had identified. Novak then made arrangements for the student to retake the exams and notified Lambeth that the student had improved his grades enough to meet the student's college requirements. When Novak reported to Lambeth, the deadline for the student's college requirements was imminent. Lambeth assumed but did not ask whether Novak had contacted the teachers whose grades were involved. Lambeth did not ask to see any documentation of the teachers' assent to a grade change or any documentation of the retesting. Lambeth just told Novak to change the grades in the official records and notify the college and/or the NCAA. Novak responded that she did not know how to do this. Lambeth told her to get assistance from clerical personnel who knew how to change grades; Lambeth herself took care of notifying the college and/or the NCAA. To notify the college and/or the NCAA, Lambeth modified a form used by Countryside's athletic department to document that a student-athlete's grade had been properly re-evaluated so as to regain eligibility to participate in interscholastic athletics. The form utilized had a place for the signature of the teacher whose grade was being re-evaluated. In modifying the form for purposes of notifying the college and/or the NCAA, Lambeth deleted the provision for the teacher's signature. Lambeth signed the form as principal on August 15, 1997, and sent the notification to the college and/or the NCAA. Lambeth denied that she deleted the teacher signature provision in the form because she knew the teachers were unaware of the grade re-evaluations. Although the teachers were at school on August 15, 1997, preparing for the start of the 1997-98 school year, Lambeth said she dispensed with the teacher signature provision in order to expedite the notification. A few days after the start of the 1997-98 school year, the girl friend of the student whose grades were changed told Ferguson that the student had retaken Ferguson's final exam. Ferguson was busy and told the girl that they would discuss it later, which they did about a month later. For another month or more, Ferguson did nothing about it. Towards the end of October or early November 1997, Ferguson approached Lambeth to let her know what had happened and that students were talking about it. To his surprise, Lambeth told him she knew all about it, having been directly involved herself in the grade re-evaluation. Lambeth did not act as if she saw anything wrong with what was done; she even seemed proud of her participation. Ferguson, who did not think it was right for one of his assigned grades to be re-evaluated without his knowledge, was taken off-guard by Lambeth's response and decided not to say anything else about it at the time. In about December 1997, Ferguson found the time to spend several hours looking into the circumstances of the grade re-evaluations. He discovered that the grades were changed in the student's official transcript, but that the changes were not otherwise documented. The lack of documentation also seemed wrong to Ferguson. During the spring semester of the 1997-98 school year, Ferguson approached Jim Watters, the psychology teacher whose assigned grade was changed. By this time, Watters was at a different school, and Ferguson thought it would be logical for Watters to be the one to complain about the grade changes since Ferguson not only still was at Countryside but also had to deal with Lambeth in his capacity as Pinellas Classroom Teachers Association (PCTA) union representative. Watters told Ferguson that he did not want to complain because he was near retirement and did not want controversy at that point in his career. Subsequently, Ferguson sought the advice of the PCTA as to whether he would be opening himself to discipline if he did not report the incident to the school district administration. It was concluded that the incident should be reported. On April 23, 1998, Rik McNeill of the PCTA contacted Dr. Martha O'Howell, an administrator in the school district's Office of Professional Standards, to report the grade change incident; the next day, Jade Moore of the PCTA sent O'Howell a letter reporting the incident. On or about April 30, 1998, O'Howell's office began an investigation of the reported incident. On May 11, 1998, O'Howell interviewed Lambeth, Novak, and others at Countryside and took written statements from them. When O'Howell told Lambeth that teachers had complained, Lambeth wondered aloud why, since they had participated. Novak's statement, on the other hand, was that the teachers were not notified or involved because they were not at school at the time. On May 14, 1998, O'Howell re-interviewed Lambeth and Novak. In her re-interview of Lambeth, the principal maintained her understanding that Novak had discussed re-testing with the teachers whose grades were involved. During her re-interview of Novak, O'Howell asked Novak for the second time to produce the re-tests she administered, but Novak reiterated that she could not find the re-tests or any documentation that re-testing had in fact taken place. She got the impression that O'Howell questioned the truth of her assertion that re-tests actually had been administered and became defensive. Novak got the impression that it was very important for her to be able to produce the re- tests. On May 21, 1998, Novak submitted a supplement to her earlier written statement. In the supplement, Novak expressed confusion about Ferguson's complaint in light of her recollection that Ferguson had told her "emphatically last year that it wasn't his responsibility to give early exams or make up exams if they might extend beyond contract hours" and said: "That's administration's problem, not mine." Afraid of what might happen to her if she could not produce the re-tests (that it could end her career and jeopardize her retirement benefits), Novak panicked. She tried to again re- produce the examination questions, and she forged answers. She presented the forgeries to O'Howell on June 2, 1998. O'Howell quickly saw through Novak's inept forgeries for what they were, and Novak was in even more trouble than she thought she was in before the forgeries. On or about June 9, 1998, Lambeth asked for a meeting with the investigator and Area Supervisor Bill Williamson. Their assessment of the situation was that it was "serious"; they suggested that Lambeth consider what parents would think. But Lambeth also knew about Novak's forgeries and assumed that Novak had become the focus of the investigation, not her. Indeed, at a meeting on June 18, 1998, O'Howell informed Novak that her job was in jeopardy; O'Howell said she was prepared to recommend that the Superintendent terminate her employment. At that point, Novak retained an attorney, who asked to meet with the School Superintendent, J. Howard Hinesley, and the School Board's attorney, Wesley Bridges. The meeting took place on June 24, 1998. At the meeting on June 24, 1998, Novak and her attorney tried to explain to Hinesley and Bridges why Novak forged the re- tests. They also told Hinesley and Bridges that Novak thought Lambeth was trying to blame Novak for the incident but that Lambeth never told Novak to contact the teachers whose grades were involved. Hinesley took this and other information given by Novak at the meeting into consideration in evaluating the situation. Based on the discussion at this meeting, Hinesley decided to reprimand and demote Novak to an instructional position with no reduction in pay, instead of terminating her employment. On or about June 29, 1998, Area Supervisor Williamson told Lambeth that it was time to have a meeting to resolve the matter. Williamson again emphasized that it was "serious," this time communicating to Lambeth that she was also in jeopardy. The meeting was set for July 2, 1998. At this point, Lambeth hired an attorney. The meeting was attended by Lambeth, Hinesley, their attorneys, Williamson, and O'Howell. Lambeth was informed that she was being removed as principal at Countryside for her role in the grade change incident and would be transferred to another position. She was told that a letter to that effect had been mailed to her. She was required to hand over her office keys and was told to make arrangement to clean-out her office at 5 p.m. She was told that she would not be allowed to return to campus without campus police being present. Campus police escorted her to her car. On or about July 8, 1998, Lambeth received Hinesley's letter dated July 2, 1998. Besides reciting facts found through the investigation, the letter accused Lambeth of failing "to ensure that the teachers of the two courses involved had knowledge of or approved the final examination re-takes and the subsequent grade changes" and "to ensure that the re-takes were properly administered and graded and that the results were documented." The letter reprimanded Lambeth for "violation of School Board Policy 6Gx52-8.23, as well as the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida." (School Board Policy 6Gx52-8.23 sets the district's High School Credit and Student Performance Standards; section (6) of the rule provides that a student's mastery of performance standards "shall be determined by the teacher with the principal's approval.") The letter also stated that Lambeth's conduct "reflects a lack of sound professional judgment and seriously diminishes your effectiveness as a school leader." As a result, the letter stated, Lambeth was being removed her from her position as Countryside High School principal, was being placed on administrative leave, and would be reassigned to another position. By letter dated July 8, 1998, Hinesley notified Lambeth that she was being reassigned as a supervisor with the school system's Title I office. Lambeth's contract was not changed, and her pay was not reduced. Her new position is classified as Level 4 in the School Board's personnel system, while high school principal is a Level 8 position. There are some similarities between the two positions, but there also are differences. Both positions require a master's degree, certification in administration and supervision, and five years of related professional experience; a program supervisor for Title I also requires an additional minimum of three years of teaching experience. Both positions involve working with teachers; but while a principal supervises 95 teachers (plus non-teacher personnel and 1500 to 2000 students) at a school site, a Title I program supervisor works with but does not supervise principals, assistant principals, and teachers at 18 different elementary schools. Both jobs involve budget planning, but the nature of the budgets are different; a Title I program supervisor reviews budgets for federal funds. There is no provision for re-evaluating a student's grades after graduation. There is a policy to allow a student who has passed all 24 courses required to graduate, but did not earn the minimum grade point average (GPA) required to receive a diploma, to "walk" at graduation , receive a "certificate of completion," and return to school in the summer and/or an additional year of high school to re-take classes to hopefully raise his or her GPA enough to receive a high school diploma. But there is no evidence that the student involved in this case did not receive a diploma when he graduated at the end of the 1996-97 school year. He was no longer a student and should not have been able to change his grades at that point. In circumstances when it would be permissible to re- evaluate a student's grades, it should only be done in consultation with the teacher who assigned the grade. Subject to the requirement that grading policies are followed, student grading is the province of the teacher's exercise of professional judgment, subject only to the principal's approval. The integrity of the grading system depends the teacher's exercise of professional judgment. Likewise, the "education contract" among the administration, teachers, students, and parents presumes and requires integrity in the grading process. School Board Policy 6Gx52-8.28(4)(g) is clear that, in the case of "mid-point" grades, it is the "option of the teacher, subject to review by the principal, as to whether the higher or lower grade will be given." Clearly, this policy gives the principal the ability to review the teacher's grade and argue forcefully that a different grade should be assigned. Some teachers would succumb to the principal's choice, either because of the force of the principal's arguments or because of fear of the possible consequences of disagreeing with their principal. The policy may even enable a principal to overrule the teacher. But it is a violation of policy for a principal to change a grade without following the mid-point grade policy. Because of the importance of integrity in the grading system, it is incumbent on the principal to take reasonable steps to ensure that teachers are involved in any grade re-evaluation. Clearly, a principal must delegate responsibilities to assistant principals when necessary and appropriate, and a principal should be entitled to rely on an assistant principal to follow the principal's instructions (whether expressed ad hoc or in policy). For that reason, Lambeth normally would have been entitled to expect an assistant principal to involve the teacher in any grade re-evaluation. But re-evaluation of a student who had graduated was not normal, and Lambeth should have made it clear to Novak that Novak was not to proceed with re-testing and grade re- evaluation without the teachers' participation. It is not clear from the evidence that Lambeth made reasonable efforts make this clear to Novak. By the same token, because the situation was not normal, Lambeth should have made some effort to ensure that Novak properly documented the re-take of the examinations and the grade change instead of relying entirely on Novak. There is no question but that Lambeth's effectiveness as a school leader diminished as a result of this grade change incident. As Lambeth pointed out at final hearing, most principals have their supporters and detractors, and predictably there were some teachers and parents who testified that the grade change incident did not reduce Lambeth's effectiveness as far as they were concerned. But most of these witnesses did not know all of the facts and circumstances of the case and spoke from their limited perspectives. Meanwhile, there were many witnesses who testified that Lambeth's effectiveness was seriously diminished in their view, and they were not all detractors of Lambeth; they included Hinesley, other Pinellas County school administrators, retired Pinellas County School Superintendent Scott Rose, administrators from other school districts, teachers at other schools, and parents. Some of these also did not know all of the facts and circumstances of the case and spoke from their limited perspectives; but some knew all or most of the facts and circumstances and spoke from broader perspectives. Some witnesses expressed the idea that the reduction in effectiveness would not be insurmountable or permanent if Lambeth would admit her error, ask for forgiveness, and promise not to do it again. Unfortunately, Lambeth did not admit error until her testimony at the end of her case-in-chief. While she complained that she was not given the opportunity to do so before the meeting on July 2, 1998, she missed innumerable opportunities since; indeed, much of her case seemed aimed at proving that she had done nothing wrong. The authenticity of her eleventh-hour repentance is suspect. At the same time, while Lambeth's effectiveness certainly was diminished by the incident (and her refusal to admit her error, ask for forgiveness, and promise not to do it again), it is not clear just how seriously her effectiveness has been diminished. There were mitigating factors. First, Lambeth has an excellent record as an effective administrator. Second, while her efforts were misguided, her motive was to help a student gain educational benefits. The student was African- American and, while the Petitioner criticized Lambeth for testifying in deposition that the student's minority status was a factor in her efforts to help, the School Board in fact has a policy of emphasizing the delivery of educational benefits to minority students. Also, after what she has been through, it seems unlikely that Lambeth would be foolish enough to repeat this or any similar grade change blunder in the future. A reprimand and reassignment to Title I program supervisor certainly is a setback for Lambeth's career as a school principal. But, contrary to Lambeth's concern and contention in this case, it is found that such an action does not necessarily mean the end of Lambeth's career as a school principal in this or any other school district. Certainly, if Lambeth's offense is as minor as she contends it was, she may well be able to convince a school superintendent other than Hinesley to assign her as a school principal. It certainly seemed that retired School Superintendent Rose would have been open to the idea; there is no reason to be certain that others may not also consider Lambeth for a principal position. If Hinesley's position as Pinellas School Superintendent is as tenuous as Lambeth's evidence attempted to suggest (i.e., that he may be just one School Board vote from being the former Pinellas School Superintendent), the chances are that it may not be long before Lambeth could apply to a subsequent Pinellas School Superintendent for such a position. It even seems possible (although perhaps not likely) that Hinesley himself might reconsider and reassign Lambeth as a principal at some point in the future. Lambeth also contended that other School Board employees have been treated more leniently for worse offenses. But the evidence did not prove selective enforcement against Lambeth. The other situations either were too dissimilar to compare, or Lambeth's treatment was not clearly excessively harsh by comparison. Lambeth first points to the treatment of Novak. While it is true that Novak forged the re-tests, she was Lambeth's subordinate and subject to Lambeth's direction, and her treatment (reassignment to a completely nonsupervisory position) was somewhat harsher than Lambeth's. Lambeth also points to Ferguson, who Lambeth contends went unpunished after alleged violation of School Board Policy 6Gx52-6.22 by posting a copy of a portion of the School Board's investigative report on Lambeth and Novak on the bulletin board in the teacher's lounge. But Policy 6Gx52-6.22 provides: Employees shall not use the classroom, nor any other part of school facilities, as a platform for making disparaging remarks against students, parents, teachers and/or administrators. Conduct contrary to this policy may constitute grounds for disciplinary action. In addition, it is not clear that posting information about an investigation that was of genuine concern to the teachers is the same thing as using the bulletin board "as a platform for making disparaging remarks." Nonetheless, Lambeth's replacement as Countryside's principal considered the posting to be bad for morale and asked Ferguson to remove it. Initially, Ferguson refused to remove it; eventually, he removed it at the request of and as a favor to Jade Moore of the PCTA. (The evidence was that Hinesley was not aware of the posting.) Lambeth's other evidence on this point consisted of letters of reprimand to a principal and an assistant principal for not following proper procedures and immediately notifying the proper authorities of allegations of sexual abuse. It is not clear that these offenses are so similar to Lambeth's as to have required the School Board in fairness to also remove and reassign them.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing the Amended Petition for a Name Clearing, Due Process and Florida Statute 120.57 Hearing and approving the reassignment of the Respondent, Sharon Lambeth, to Title I program supervisor under the same contract and at the same pay. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 2nd day of April, 1999. COPIES FURNISHED: Oscar Blasingame, Esquire Orange Park Center 696 First Avenue, North, Suite 400 St. Petersburg, Florida 33701 Louis Kwall, Esquire Kwall, Showers & Coleman, P.A. 133 North Ft. Harrison Avenue Clearwater, Florida 33755 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 4th Street, Southwest Largo, Florida 33770-2942
Findings Of Fact Between December 6, 1994, and October 15, 1995, Respondent was employed by the Petitioner as a school bus driver and, subsequently, as a materials handling technician who delivered textbooks and supplies. His performance evaluations for that work were satisfactory or better. Prior to October 15, 1995, a teacher aide position became vacant at H. L. Johnson Elementary School, one of the public schools in Palm Beach County. This vacancy was in the special education classroom taught by Harriet Lurie. Although he had no experience or training for this type work, Respondent was hired to fill this vacancy. Respondent began this employment on October 15, 1995. The students in this classroom require constant supervision and assistance. Ms. Lurie, an experienced ESE teacher, the Respondent, and one other teacher aide were expected to provide the care and supervision required by these students. Respondent and Ms. Lurie were unable to develop an effective working relationship. The conflicts between Respondent and Ms. Lurie escalated, despite the efforts of the principal, Penelope Lopez, to encourage them to work together. December 15, 1995, was the last day of school prior the Christmas holidays. Following an incident between Respondent and Ms. Lurie earlier that day, Respondent appeared in Ms. Lopez's office and requested that he be transferred from Ms. Lurie's class to any other available position. Ms. Lopez explained to Respondent that there were no other available positions. Because he was adamant about not returning to Ms. Lurie's classroom, Ms. Lopez agreed during that meeting to let Respondent perform custodial duties for the remainder of the day. January 2, 1996, was the first day of school following the Christmas holidays. On that date, Respondent reported to Ms. Lopez's office and met with her prior to the beginning of school. Respondent again asked that he be transferred from Ms. Lurie's classroom. Respondent became upset when Ms. Lopez denied his request for transfer and thereafter gave him a written reprimand. The reprimand, which accurately reflects efforts by Ms. Lopez to resolve the problems between Respondent and Ms. Lurie, provided, in pertinent part, as follows: I have had conferences with you on December 6, 12 and 15, 1995 and numerous other impromptu meetings in which we discussed your concerns, my concerns and conflicts you were having with the teacher and the other teacher aide in the K-1B classroom (Ms. Lurie's classroom). The students in this classroom need consistent supervision in a warm nurturing environment. I am very unhappy with the conflict going on between you and the teacher and you and the other aide, at times in front of the students . . . There appears to be no effective working relationship between you and these associates . . . * * * 6. As a teacher-aide (sic), you report to the teacher in the K-1B class and work under her direct supervision. You are expected to follow directions and not argue with her . . . I have requested at each meeting with you to work cooperatively with the teacher and your coworker to solve problems or enhance the classroom setting and work as a team. I had to remove you from the classroom on December 15, 1995 due to a conflict with the teacher. Since you have not heeded my previous advice, I'm presenting you with this written reprimand as disciplinary action. I expect your behavior to improve immediately in all of these areas. Should you fail to improve your attendance and abide by established and published rules and duties of your position, you will subject yourself to further discipline. After Ms. Lopez gave Respondent the written reprimand, on January 2, 1996, she instructed him to return to his duties in Ms. Lurie's classroom. Respondent refused this instruction and left the school campus. Respondent did not return to the school campus on January 2, 1996. Respondent had seven days of sick leave available for his use as of January 2, 1996. Further, he qualified for additional unpaid leave pursuant to the Family and Medical Leave Act (1993), 29 USC Sections 2611 et seq. Respondent did not requested nor had he been given any type of authorized leave for January 2, 1996. Respondent asserts that the School Board has no grounds to terminate his employment for his conduct on January 2, 1996, because he left school to go visit his doctor. The assertion that he left campus on January 2, 1996, because he was sick or in need of a doctor is contrary to the greater weight of the evidence in this proceeding. Based on the greater weight of the evidence, it is found that after he left the school campus on January 2, 1996, Respondent spent the balance of the day attempting to contact district administrators to complain about the letter of reprimand he had received. The greater weight of the evidence establishes that Respondent did not seek medical attention on January 2, 1996. 1/ Respondent disobeyed Ms. Lopez's clear and direct instructions on January 2, 1996, and he willfully neglected his official responsibilities. This action was not justified by a need for medical attention. On January 3, 1996, Respondent reported to Ms. Lopez's office at approximately 7:45 a.m. Ms. Lopez told Respondent that he was needed in Ms. Lurie's class and told him to report to duty. Respondent replied that he was going to the doctor and left school campus. When Ms. Lopez asked why he had not gone to the doctor when he was away from school on January 2, Respondent replied that he had been too busy attempting to do something about the reprimand he had been issued. Respondent was entitled to use sick leave to visit the doctor on January 3, 1996, and he was entitled to use paid sick leave, to the extent of its availability, between January 3, 1996, and the time of his tests on January 16, 1996. Good Samaritan Primary Care is a group of doctors who have associated for the practice of medicine. Leonard A. Sukienik, D.O., and Karen Kutikoff, M.D., are employed by that group practice. On January 3, 1996, Respondent was examined by Dr. Sukienik. Following that examination, Dr. Sukienik scheduled certain medical tests for Respondent to be conducted January 16, 1996. Dr. Sukienik wrote the following note dated January 3, 1996: To whom it may concern, Mr. Frank Sedor is a patient in my office and is noted to have stress related anxiety attacks with chest pain symptoms. This stress may be related to his job and Mr. Sedor may benefit from time off from work. Respondent returned to Johnson Elementary and met with Ms. Lopez at approximately 1:30 p.m. Respondent gave Ms. Lopez the note written by Dr. Sukienik. When Ms. Lopez asked Respondent to return to work, he informed her that he was not going to return to work until after the tests scheduled for January 16, 1996, had been completed. Respondent thereafter left the school campus. Respondent did not request any type of leave on January 3, 1996. Prior to her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez did not intend to recommend that Respondent's employment be terminated because she hoped that the problems between Respondent and Ms. Lurie could be resolved. After her meeting with Respondent on the afternoon of January 3, 1996, Ms. Lopez sent a memorandum to Louis Haddad, Jr., the coordinator of Petitioner's Employee Relations office in which she requested that further disciplinary action be taken against Respondent for his refusal to report to his classroom as instructed on January 2, 1996, and for thereafter leaving the school site. The School Board, based on the superintendent's recommendation, voted to terminate Respondent's employment at its meeting of February 7, 1996, on grounds of insubordination and willful neglect of duty based on Respondent's conduct on January 2, 1996. 2/ The School Board is not seeking to terminate Respondent's employment for conduct after January 2, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. The final order should also terminate Respondent's employment as a teacher aide. DONE AND ORDERED this 30th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1996.
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
Findings Of Fact The Petitioner, Barbara Carroll, has been employed by the Holmes County District School Board as lunchroom manager at Prosperity Elementary School for more than six years. On June 15, 1981, the superintendent of the Holmes County School District formally recommended to the school board that the Petitioner be re-employed for the 1981-82 school year in the same position. On July 20, 1981, the school board rejected the superintendent's nomination on the basis of advice from the then principal of Prosperity Elementary School that the Petitioner was frequently tardy or absent, left work early, spent time away from her work area, was insubordinate and openly defiant to the school principal, and because of threats made by the Petitioner's husband when the principal reprimanded her near the end of the 1981 school year. By letter dated July 29, 1981, the Petitioner was notified of the school board's rejection of the superintendent's nomination and the rationale. Prior to his nomination, the superintendent visited the school where the Petitioner managed the lunchroom, and ate there in the lunchroom. He recommended her because his review of the school records and personnel file, together with his knowledge of the Petitioner and her reputation, for four years, convinced him that she is qualified to perform the duties required of the position. He was aware of the complaints that had been made about the Petitioner, but after he investigated, he still judged her to be the best person for the job. The Petitioner's character is good and she has done a fine job in the position over the years. The Petitioner's qualifications to manage the lunchroom were further supported by the present school principal, and two former principals while the Petitioner worked there. These witnesses corroborated the testimony of the superintendent. The Petitioner was a good manager, and she operated the lunchroom in a satisfactory manner throughout the time she was employed. She was never defiant or disobedient, and she was always punctual. The Petitioner testified in her own behalf and explained that she never intended to be insubordinate or defiant of the principal's authority. She did question his policies relating to lunchroom reports and attendance records, and although she disagreed with the principal, she always followed his instructions. The Petitioner notified the principal when she was going to be absent except on one occasion when a family member died. Even then she arranged for a substitute to operate the lunchroom. Another time the Petitioner left school early to drive a teacher to the hospital, without advising the principal, but this situation arose suddenly and happened after lunch time. The operation of the lunchroom was never interrupted. When the complaining principal came to Prosperity School, he found the Petitioner to be doing a good job managing the lunchroom. Throughout the years he remained principal the Petitioner never performed her job improperly. The lunchroom was always in operation, and the Petitioner had the lunchroom covered when she was not there. With remarkable candor, the principal described the Petitioner as a good employee, and added that perhaps she could work better with another principal. This person is not now principal of Prosperity School, There was a personality conflict between the Petitioner and the principal, especially during the 1980-81 school year. The principal had a right to expect that employees under his supervision comply with his instructions and implement his policies without complaints or grumbling, and particularly without insubordination. However, there was not sufficient evidence presented on behalf of the school board to support a finding that the actions of the Petitioner amounted to defiance of the principal's authority, or insubordination, or were more than fair comment by the Petitioner. The weight of the credible evidence supports a finding that the school board's rejection of the superintendent's nomination of the Petitioner as lunchroom manager at Prosperity School was without just cause.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner, Barbara Carroll, be reinstated as lunchroom manager at Prosperity Elementary School in Holmes County, Florida, effective the beginning of the midterm of school year 1981-82. An it is further RECOMMENDED that the Holmes County District School Board compensate the Petitioner, Barbara Carroll, for the period from the beginning of the 1981-82 school year to the date of her reinstatement. THIS RECOMMENDED ORDER entered on this 11th day of January, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1982. COPIES FURNISHED: Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425
The Issue The issues in this case are (a) whether Respondent, a high school principal, is a "local officer" required annually to file a disclosure of financial interests pursuant to the Code of Ethics for Public Officers and Employees; and, if so, whether Respondent willfully failed or refused to file an annual statement of financial interests for the year 2013, in violation of section 112.3145(8)(c), Florida Statutes.
Findings Of Fact At the time of the final hearing, Respondent William Aristide ("Aristide") was the principal of Booker T. Washington Senior High School in Miami, Florida, a position he had held at all times material to this proceeding. In that capacity, he has been, at all times, an employee of the Miami-Dade County Public Schools ("M-DCPS"), a school district in the state of Florida. On March 25, 2015, the Florida Commission on Ethics ("Commission") mailed to Aristide a Notice of Assessment of Automatic Fine, which informed Aristide that a daily fine of $25.00 had run against him for each day his 2013 Statement of Financial Interests had remained unfiled after September 2, 2014. Because Aristide had filed his disclosure statement more than 60 days after this deadline, the notice advised, the Commission had assessed the maximum fine amount of $1,500.00 against him, which would need to be paid within 30 days unless Aristide appealed the imposition. Aristide neither appealed the assessment nor paid the fine. Therefore, on April 30, 2015, the Commission sent Aristide a Final Notice of Assessment of Automatic Fine for Failure to Timely File Form 1, Statement of Financial Interests, which informed him that he had waived his right to appeal, and that if he failed to pay the fine within 30 days, the Commission would "enter an order setting [his] fine at $1,500 and [would] utilize all methods allowed by law to collect this fine." Aristide did not pay the fine. Consequently, on July 29, 2015, the Commission rendered a Default Final Order finding that "William Aristide, Miami-Dade County Public Schools, Employees, was on the list of persons required to file a Statement of Financial Interests for the year 2013"; that he had not timely filed the statement and thus been fined $1,500.00; that he had failed to appeal the assessment of the fine and thereby waived the right to do so; and that the fine remained unpaid. Based on these findings, the Commission "affirmed" the fine amount of $1,500.00, ordered that Aristide pay the fine within 30 days, and warned that nonpayment would trigger collection efforts, including withholding of salary until satisfaction of the debt. Aristide still did not pay the fine. So, the Commission exercised its authority to request M-DCPS to withhold from Aristide's paychecks the maximum amount allowable under the law and to remit such withheld payments to the Commission until the fine was paid. M-DCPS complied. On December 15, 2015, the Commission received from the school district the final installment on the $1,500.00 debt, which, by that coercive means, Aristide has paid in full. Meantime, the Commission began taking steps to fulfill its obligations under section 112.3145(8)(c), which requires that, whenever a person accrues the maximum automatic fine of $1,500.00, the Commission "shall initiate an investigation and conduct a public hearing without receipt of a complaint to determine whether the person's failure to file is willful." On April 15, 2015, the Commission issued a Determination of Investigative Jurisdiction and Order to Investigate, which stated that Aristide "allegedly serves as Principal for Miami- Dade County Public Schools, a position requiring the annual filing of a Statement of Financial Interests (CE Form 1)," and directed staff to "conduct an investigation . . . for a probable cause determination as to whether [Aristide] has willfully failed or refused to file an annual disclosure statement." On October 28, 2015, its investigation complete, the Commission entered an Order Finding Probable Cause announcing "that there is probable cause to believe that [Aristide], as a local officer required to file financial disclosure, violated Section 1123145(8)(c) [sic], Florida Statutes, by willfully failing or refusing to file an annual CE Form 1, Statement of Financial Interests for the year 2013, required to be filed by him due to his holding or having held the position of principal for a Miami-Dade public school." The Commission, accordingly, ordered a public hearing, and, on July 11, 2016, the matter was referred to DOAH. On September 8, 2016, ahead of the final hearing in this case, the parties filed a Joint Prehearing Stipulation. The parties stipulated to the fact that Aristide "was aware that he was required to file a CE Form 1 every year including for the year 2013." JPS at 7. They stipulated, as well, to the legal conclusion that Aristide "is subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees, for his acts and omissions during his tenure as the principal of Booker T. Washington Senior High School." Id. at 8. Finally, in his unilateral statement of position, Aristide "acknowledge[d] that his position as a principal required the filing of a CE Form 1, 'Statement of Financial Interests' for 2013." Id. at 3. Throughout this proceeding, the parties have operated under the belief that Aristide is a "local officer" required by statute to file financial disclosure statements because he is a public school principal. This assumption, however, is not legally correct. As will be discussed below, a public school principal, qua principal, is not a "local officer." Rather, a public school principal is a "local officer" only if he is a "purchasing agent having authority to make any purchase exceeding" $20,000.00 on behalf of the school district, or happens to hold some other position which, unlike principal, is included in the definition of a "local officer." See § 112.3145(1)(a)3., Fla. Stat. (defining "local officer"). (For ease of reference, the term "Local Purchasing Agent" will be used to refer to a person who has the authority to make any purchase "on behalf of any political subdivision of the state or any entity thereof" exceeding "the threshold amount provided for in s. 287.017 for CATEGORY ONE,"1/ and who, for that reason, falls within the definition, qua purchasing agent, of a "local officer" for purposes of section 112.3145.) The only public position that Aristide held is that of school principal. The Commission did not allege, nor did the parties stipulate to, any facts concerning the nature and extent of Principal Aristide's unilateral authority to spend M-DCPS's money as a purchasing agent. There is, moreover, no direct evidence in the record to support a finding that Aristide was able, on his own authority, to make any purchase in excess of $20,000.00 for the school district. Aristide testified, credibly, that in "Miami-Dade County a principal cannot write a check for over a thousand dollars without having three bidders . . . . It's difficult to get a check without that. And the second part of it even after, let's say I agree to something, it's costing $1500, there are five additional signatures above me to make sure that whatever the process is it's completed and is so forth." Tr. 106-07. This testimony establishes that Aristide had spending authority, but it fails to prove, even by implication, that he possessed the unilateral power to approve the expenditure of $20,000.00 in public funds for any purchase.2/ Because it is not common knowledge that M-DCPS principals, or any of them, are authorized independently to make purchases exceeding $20,000.00, the fact cannot simply be assumed. The strongest circumstantial evidence of this fact is Respondent's Exhibit 2, a composite comprising several years' worth of M-DCPS financial disclosure forms, signed by Aristide, which (he credibly testified) his employer requires "principals to file." Tr. 104. The form (FM-4198), titled "FINANCIAL DISCLOSURE FOR CALENDAR YEAR ," states at the top: "PERSONNEL AUTHORIZED TO MAKE PURCHASES EXCEEDING $20,000 [Sec. 297.017(1), F.S.]," followed by the definition of "purchasing agent" codified in section 112.312(2). Form FM-4198 (or at least so much of it as is in evidence) contains no information or instructions regarding who must file. Aristide's testimony proves that that "principals" must file the form, but not that principals are authorized to make purchases exceeding $20,000.00. Form FM-4198 could reasonably support the narrow inference that personnel (perhaps even all personnel) having purchasing power in excess of $20,000.00 must file, but it does not support the larger inference that only such personnel must file. Indeed, Aristide's testimony negates such an inference unless one assumes that principals are authorized to spend more than $20,000.00 on a purchase, which is the very fact at issue. Thus, while it might be reasonable to infer from the face of Form FM-4198 that all personnel authorized to make purchases exceeding $20,000.00 must file, it is not reasonable to infer therefrom that all personnel who must file are authorized to make purchases exceeding $20,000.00. The undersigned declines without hesitation to infer that Aristide possessed the power to spend more than $20,000.00 on any purchase, for there are no proven basic facts which logically compel——with the persuasive force of clear and convincing evidence no less3/——an inference to that effect.4/ The upshot is that the Commission has failed to offer evidence sufficient to prove that Aristide is, in fact, a "local officer" required to file a statement of financial interests. Because, for want of proof, the undersigned cannot make a finding of fact that Aristide holds a position that meets the definition of a "local officer,"5/ he is compelled to conclude, for reasons that will be explained more fully below, that the Commission lacks jurisdiction to maintain this proceeding, which accordingly must be dismissed.
Recommendation Based on the foregoing, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding for lack of jurisdiction. DONE AND ENTERED this 2nd day of November, 2016, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 2nd day of November, 2016.
The Issue The issue for determination in this case is whether Respondent should be discharged from her employment as a teacher in the Duval County Public School System for professional incompetency pursuant to Section 4(e) of the Duval County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended)
Findings Of Fact At all times relevant to this proceeding, the Respondent, Jewel Jones, was a tenured public school teacher licensed by the State of Florida in elementary education and exceptional education, and is currently a certified teacher in the fields of elementary and exceptional education. She has been employed by the Duval County School Board for 28 years (T 467- 468). For seven years, she taught educable mentally retarded students and for eighteen years taught elementary education (T 468-469). Prior to the 1984-85 school year, Ms. Jones taught elementary education at Beauclerc Elementary School for twelve years (T 469). Until the 1984-85 school year she had received satisfactory performance evaluations for each of her years of employment (T 470, Res. Ex. 3). Respondent received unsatisfactory evaluations from two different principals at two different schools for the 1984-85 and 1985-86 school years. At the end of the 1983-84 school year, Ms. Jones transferred to a school closer to where her mother lived because her mother, who was an alcoholic, had health problems (T 146,472). Ms. Jones requested and ultimately received a transfer to the Hyde Park Elementary School where she was employed for the 1984-85 school year (T 475). During the summer of 1984, Ms. Jones experienced a number of personal family problems. On July 25, 1984, her son was arrested and charged with sexual battery. This same son had been previously charged and convicted of the same offense and had served over six years in prison. The son was tried in December 1984 and acquitted of the charge, but returned to jail for violation of his parole (T 476-478). In addition, Ms. Jones' daughter had dropped out of college and started writing a series of bad checks. Ms. Jones was concerned about the welfare of her family (T 479, 145-146). In January 1985 Ms. Jones sought the aid of a board certified psychiatrist and neurologist, Dr. John Stamm (T 144), who treated Respondent between January 23, 1985 and July 15, 1985 (T 144-149), while Respondent was at Timucuan Elementary School. Ms. Jones reported to Dr. Stamm that she had been depressed for about six months prior to seeing him and that she was having crying spells and difficulty sleeping (T 146). Dr. Stamm's diagnosis was that Respondent had suffered "a major depressive episode," which he treated with medication and psychotherapy, and which he felt was situationally related to the problems Respondent's mother, daughter, and son were having (T 149,150). As part of his treatment, Dr. Stamm prescribed "a significant amount of antidepressant medication" for Respondent (T 157). Dr. Stamm testified that Respondent's significant depression would have had an adverse impact on her work performance (T 160, 163) and could have been detected by some of the students in her class leading to a sense of unease or concern on their part (T 161). Dr. Stamm stated that most frequently depressive episodes are time limited, but that he was unable to determine whether the Respondent's condition was time limited or permanent (T 150). The principal at Hyde Park Elementary School during the 1984-85 school year was Virginia K. Greene. Greene observed the Respondent's work during the 1984-85 school year. Respondent was unable to maintain discipline, keep the children on task, and present her lessons in an organized fashion. Respondent jumped from one subject to another, losing the interest and the attention of the students in the process (T 82-83). Respondent's relationship and rapport with parents of the children in her class was poor. Respondent was absent from school on a total of 31 occasions during the 1984-85 school year, was tardy on numerous other occasions, and on various occasions failed to notify the school so that proper substitute teachers could be arranged (T 71-73). Ms. Greene attempted to secure assistance for Respondent from the School Board's teaching cadre. The teaching cadre assists teachers in their techniques. Respondent refused this assistance. Respondent never explained her family problems to Greene, nor gave Greene any reason why a teacher with her background was having problems. In accordance with the collective bargaining agreement and the documentation requirements of the School Board, Ms. Jones received an official notice of deficiencies (Pet. Ex. 4, Res. Ex. 1, Para. A-5) and had a conference with Greene regarding the notice. Although Jones' performance had improved, it was not enough to justify a satisfactory performance evaluation (T 504-508). On March 15, 1985, Ms. Greene gave Ms. Jones an unsatisfactory rating on her annual evaluation form. Ms. Jones received a total of nine reduction points on her evaluation form (Pet. Ex. 7, Res. Ex. 1, Para. A-1), one more than the maximum of eight which is considered unsatisfactory. Ms. Jones received eight of the nine reduction points in four areas under classroom management. Ms. Greene was an experienced teacher and principal and qualified to assess the Respondent's work. In Ms. Greene's opinion, the Respondent was not a competent teacher during the year based upon Greene's observations and those of the teaching cadre reporting to Greene. Greene's evaluation reflected her assessment of the Respondent's performance. In Greene's opinion, the students in Respondent's class did not have a successful year during the 1984-85 school year. The teacher evaluation form provides 36 factors or areas of teacher competency which are to be evaluated. No guidelines are provided to the evaluators on performance indicators to be used to evaluate each area of competency (T 140). Ms. Greene had a set of predetermined indicators based upon her experience that she used to evaluate all teachers. Some of the indicators Greene used to determine competency in classroom management were common to more than one of the six areas assessed under management. Structured observation forms are provided for the evaluation of beginning teachers. The forms for beginning teachers are more objective than the ones used for tenured teachers (T 399-400). Ms. Greene testified that in the 1984-85 school year, she used the same evaluation system for all the teachers whom she rated (T 186). Of the 28 teachers evaluated by Ms. Greene, only Ms. Jones received a less than satisfactory or a "needs improvement" rating in any of the 36 rated factors (T 180-185). Following the conclusion of the 1984-85 school year, Respondent was given the opportunity to transfer to a new school as required by Section 4(e)(2) of the Tenure Act. Respondent availed herself of that opportunity and transferred to Timucuan Elementary School, where she was employed during the 1985-86 school year. Jane Sharpe Condon was the principal at Timucuan Elementary School at the beginning of the 1985-86 school year. Ms. Condon reviewed Ms. Jones' personnel file and was aware that Ms. Jones was classified as a less than satisfactory (LTS) teacher. Ms. Condon counseled with Respondent, concentrating on the areas of indicated weakness (T 243, 244, 288). In addition, Condon counseled Respondent about avoiding derogatory remarks about students and the school, and the importance of maintaining professional relationships with parents and with school staff (T 244-248). Condon prepared a plan for Respondent to improve her classroom management. Ms. Condon followed the Board's instruction of documenting and establishing a record of Ms. Jones' performance, compiling a large number of documents regarding Ms. Jones' performance (T 275-276; Res. Ex. 1, 1a-4, b-2, b- 3, b-5; Pet. Ex. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24). During the 1985-86 school year, Ms. Condon evaluated Ms. Jones two times as required, once in October 1985 and again in March 1986, and rated Ms. Jones unsatisfactory (Res. Ex. 23, 24). Ms. Condon arranged for Betty John Miller, the school's reading resource teacher, and Marilyn Russell, a member of the Duval County School Board teaching cadre, to provide assistance for Respondent during the 1985-86 school year (T 248-249). Ms. Condon observed Respondent's classes. Respondent's class completely ignored Respondent's instructions. Respondent failed to maintain the students' attention. The Respondent "overdwelled" in her lesson presentation. The Respondent interrupted her teaching on numerous occasions to threaten disciplinary action against unruly students, but she failed to follow through when students continued their disruptive behavior (T 257-258). Betty John Miller, the reading resource teacher at Timucuan Elementary School during the 1985-86 school year, worked with the Respondent and observed her class in order to assist Respondent in improving her teaching technique. Respondent was unable to conduct a reading group with part of her class and keep the remainder of the class on task with their given assignments. Although Respondent listened to Miller's suggestions, she did not follow through in implementing them (T 306-307). Marilyn Diane Russell, a member of the Duval County School Board teaching cadre, observed the Respondent's teaching during the 1985-86 school year. Respondent had difficulty in communicating orally with her students and too frequently repeated instructions to the children (T 341). Respondent was unable to organize a lesson with a review, introduction and development of new material, practice activities, follow-up and another review (T 347). Respondent made excessive use of questions which require the simple recitation of facts. In the latter part of January or the early part of February, 1986, Russell was transferred to another position and ceased working with Respondent. Another member of the teaching cadre, Barbara Vandervort, began working with Respondent (T 357). Ms. Vandervort consulted with Ms. Russell, reviewed Respondent's file, and consulted with Ms. Condon to assure that there would be no break in the efforts to assist Respondent. (T 407-412). Ms. Vandervort worked with Respondent on numerous occasions in an effort to improve Respondent's behavior management and to eliminate her use of repeated reprimands in an attempt to keep order in the classroom (T 413-414). The deficiencies identified by Ms. Condon were still present during the latter part of the 1985-86 school year (T 417-418) when Vandervort observed Respondent's work. Ms. Vandervort saw student throw rubber bands at Respondent, who told the student to take a seat in the back of the room. When the student failed to do so, Respondent took no further disciplinary action (T 416). Ms. Vandervort observed that Respondent was unable to put all of the elements of a proper lesson development together at one time or to teach a complete lesson (T 416-417). Ms. Vandervort, Ms. Russell, and Ms. Miller reported their observations to Ms. Condon. Based upon these reports and her own observations, Ms. Condon evaluated Respondent's performance as below standard for the 1985-86 school year although there was some slight improvement noted from time to time (T 270-271). Condon did not consider Respondent competent as a teacher during the 1985-86 school year (T 271-272). The general memorandum on Evaluation of Instruction Personnel (Res. Ex. 1) was the only written instruction Ms. Condon received to assist her in compiling teacher evaluations (T 276-277). Respondent stated that her personal and psychiatric problems interfered with her performance during the 1984-85 school year and that she did not have a good year (T 539 & 540). Respondent admitted that it would have been better to have taken leave in order to work out her personal problems rather than continue to teach (T 541). Respondent admitted that she "probably did have problems" at the beginning of the 1985-86 school year, but that she felt she improved enough during the course of the year to be rated as satisfactory (T 547). Donna Darby, Respondent's principal at Beauclerc Elementary School during the 1983-84 school year, testified that Respondent's performance declined markedly during the latter part of 1983-84. Ms. Darby also testified that she discussed this problem with Respondent and indicated to Respondent that if her performance did not improve during the 1984-85 school year, Ms. Darby would request "additional support help" for Respondent (T 458-459). Respondent testified that she did not remember any conversations with Ms. Darby concerning her performance during the latter part of the 1983-84 school year (T 471-472). Numerous letters or memoranda were written to Respondent by various persons in an effort to point out her deficiencies and to offer suggestions for improvement. Her principals provided Respondent with clear and detailed statements of Respondent's deficiencies throughout 1984-85 and 1985-86. The School Board provided Respondent with limited in-service training during the 1985-86 school year in addition to the assistance of the teaching cadre. Respondent was afforded a public hearing, was informed of the nature and cause of the accusations, has confronted the accusing witnesses, was allowed to subpoena witnesses and papers, and secured the assistance of counsel. Neither the Duval County Teacher Tenure Act nor Duval County School Board has formally defined the term "professional incompetency;" however, the term is not specialized and is capable of general proof. At the start of the 1984-85 school year, the Respondent had a number of children with disciplinary problems (T 485); however, the children with disciplinary problems were evenly distributed among the four other third grade classes, as were the better students (T 70). During the first few months of 1984-85, Ms. Greene transferred four students from Ms. Jones' class (Pet. Ex. 3). The transfers were made primarily because of parent complaints to her (T 63-64) about Ms. Jones'. Ms. Greene did not have a cipal/teacher/parent conference with Ms. Jones to discuss the problems (T 493-495). During the entire school year, neither Ms. Russell nor Ms. Vandervort gave a demonstration class for Ms. Jones (T 524). The only help given by Ms. Russell and Ms. Vandervort other than critiques after their observations was a handwriting kit and two booklets (T 528-529, Res. Ex. 4, 5). The procedures utilized by the School Board are designed to document its decision to discharge a teacher as much as the procedures are intended to assist the teacher to improve his or her performance. No competent evidence was presented that the evaluation procedure used by the Duval County School Board is invalid. All of the Respondent's principals were teachers of significant experience, as well as having been principals for a number of years, and were qualified to evaluate the Respondent's performance. The acute depression from which Respondent suffered during the 1984-85 school year degraded her performance of her duties; however, her uncontroverted testimony was that she could now perform her duties. The data on class performance by students in Respondent's classes based on Jt. Exh. A, B, C & D reveals the following: At Hyde Park Elementary School, the grades of Respondent's class on the Standford Achievement Test were: Class Reading Math Rm. 13 53.88 55.64 Rm. 15 (Jones) 55.52 49.74 Rm. 16 60.23 50.42 Rm. 18 54.04 52.04 At Timucuan Elementary School the grades of the Respondent's class on the Standford Achievement Test were: Class Reading Math Rm. 18 1/ 62.00 54.52 Rm. 19 (Jones) 44.55 49.41 Rm. 20 43.52 47.19 Rm. 22 43.62 46.73 Rm. 24 2/ 72.23 81.73 At Hyde Park Elementary School the scores on the Essential Skills Test reflected Respondent's class had the next to the highest math performance and the lowest scores in reading, the opposite of the indications of the Standford Achievement Test. At Timucuan Elementary School the scores on the Essential Skills Test reflected the reading scores of the Respondent's students rose 6/10's, and her class was next to the worst class (Rm. 20) whose score fell from 80 to 74.6. The math scores of her class were the lowest. Again, these results are contrary to the Standford Achievement Test. The data above is counter to the opinion of the principals at both schools that Respondent's students suffered significantly in their learning. The Respondent's classes were average on the Standford Achievement Test which is indicative of a successful year.
Recommendation In the absence of the degree of proof required and mindful that the Respondent has been employed as a school teacher in Florida for over 25 years and that no action should be taken by the School Board which would have a chilling effect upon employees seeking professional help with mental and emotional problems, it is RECOMMENDED that: The complaint against Respondent be dismissed. DONE and ORDERED this 26th day of February, 1988, in Tallahassee, Florida. STEPHEN F. DEAN 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 26th day of February, 1988.
Findings Of Fact Respondent has been employed by the School Board of Dade County, Florida, as a continuing contract teacher for some years. The contract between the Dade County Public Schools and the United Teachers of Dade, introduced as Respondent's Exhibit No. 1, contains the terms and conditions of Respondent's employment. The contract states that the superintendent has the authority to assign or reassign the Respondent to any school within the system. The superintendent or his designee may, when deemed in the best interest of the school system, involuntarily transfer a teacher. Before a teacher is involuntarily transferred a conference shall be held with the area superintendent or his designee or appropriate division head, except where such transfers are the result of a legal order. The contract further provides for the filing of grievances by employees concerning the application or interpretation of the wages, hours, terms, and conditions of employment as defined in the contract. The contract defines a grievance as a formal allegation by an employee that there has been a violation, misinterpretation or misapplication of any of the terms and conditions of employment set forth in the contract. Respondent was involuntarily transferred from a sixth grade teaching position at Edison Park Elementary School to a first grade teaching position at Primary C Elementary School. Prior to the transfer he was afforded the opportunity of a conference with a designee of the Area Superintendent at which time he unsuccessfully challenged his transfer. The Respondent believes that the conference which was held was a sham and was not meaningful. Respondent continued to be dissatisfied with the transfer and continued to seek a solution to his problem by engaging in subsequent conversations with the Area Superintendent and others within the Dade County School System. Respondent did not follow the provisions for grievance filing contained in the contract but rather reported for duty on August 25, 1976. On or about that date, he notified his principal and Mr. Steve Moore, the Assistant Superintendent for Personnel, that he would not and did not intend to remain at his assigned position. Respondent worked on August 26, 1976, but then departed, calling in sick for the work days up to and including October 8, 1976. This period of absence constituted authorized sick leave. On October 8, 1976, Respondent advised Dr. West and other members of the school system administrative staff that he was available for assignment to another school but would not report to work at Primary C Elementary School. Up to and including the date of the hearing, Respondent has failed and refused to report for duty at his assigned work location and has in fact performed no duties as a teacher during that time. The school system administration has at no time authorized Respondent's absence from duty from October 8, 1976, to the date of the hearing.
Findings Of Fact Petitioner has been employed as a teacher by Respondent for thirteen years and has taught at the Prosperity Elementary School for the past ten years. She holds a Rank II teaching certificate based on her master's degree. Mr. Johnny Collins, the Superintendent of Schools, recommended that Petitioner be placed in the position of teacher-principal at Prosperity Elementary School for the 1981-82 school year. This recommendation was initially made in May or June, 1981. Respondent School Board rejected the Saunders nomination at its July 20, 1981, meeting. The reasons for the rejection as stated in the minutes are as follows: Mrs. Saunders failure to meet the qualifications of Chapter 231, Florida Statutes; 2) Failure to satisfy the job description as set forth in the approved job description for the Holmes County School Districts, specifically that principals be courteous, diplomatic and cooperative; that principals have leadership qualities; and that principals must be positive but not autocratic in solving problems; 3) failure to cooperate with past principals at Prosperity Elementary School and contributing to the disharmony amongst the personnel; 4) statements of Mrs. Flynn Jones, Tommy Hudson, Gerald Commander and Posie Vaughn. The incumbent Superintendent of Schools and his predecessor, along with five of Mrs. Saunders' previous direct supervisors, testified as to her qualifications. This testimony established that she is a competent teacher and has the necessary leadership ability to serve as a school principal. Her teacher evaluations have, without exception, been satisfactory or above in all areas. Petitioner's supervisor in 1972, Mrs. Flynn Jones, considered her rude and difficult to work with. Mrs. Saunders and Mrs. Jones had been on good terms until Mrs. Jones was appointed interim principal. Saunders, who apparently resented Jones' appointment, thereafter withdrew from her and responded only to formal instructions. Mr. Posie Vaughn has filled the Prosperity Elementary School teacher- principal position since 1978. He and Petitioner were competing applicants for the current school term principalship. Superintendent of Schools Collins, who took office in January, 1981, did not recommend Vaughn, but selected Saunders instead. After the School Board rejected Saunders, and Collins refused to nominate Vaughn, the School Board reappointed him. Mr. Vaughn has experienced the same personal hostility and lack of willing support which Mrs. Jones encountered. Mrs. Saunders, who resented Mr. Vaughn's appointment over her, once contacted the Superintendent of Schools to complain of teacher ratings (other than her own). On another occasion she criticized Vaughn's friendship with the piano teacher to School Board members. Mr. Vaughn testified to his belief that Mrs. Saunders is a troublemaker and not qualified to be principal. However, the ratings he filed on Saunders do not reflect these negative opinions. Further, Vaughn conceded that Saunders is a competent teacher and possesses the ability to lead. Mr. Dan Padgett, principal at Prosperity Elementary School from 1973 to 1976, found Mrs. Saunders to be a capable teacher and a courteous, cooperative employee. This favorable testimony was supported by several co-workers and parents of her pupils. Mrs. Margaret Woodall testified to her dissatisfaction with Mrs. Saunders' treatment of her child. However, her complaint as to Mrs. Saunders' disciplining methods received proper attention and Saunders made the requested change in her approach to the Woodall child.
Recommendation From the foregoing, It is RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools to place Juanita Saunders in the position of teacher-principal, Prosperity Elementary School. DONE AND ENTERED this 6th day of October, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1981.
Findings Of Fact Respondent is an annual contract teacher with the Dade County Public Schools and holds a Florida state teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Since she is an annual contract teacher with no right to a continuing contract, the primary issue is whether she has the right to obtain back pay for the period of the school year during which she was suspended. Respondent was a teacher at Melrose Elementary School for the 1981-82 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in this classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for an audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contacted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson-plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. A Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction". This rating was based on the fact that Respondent did not pre-test her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long term prescription, she gave Respondent a list of short term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with the school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students continued to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade-level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was no improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and that the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed and on January 5, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order dismissing Respondent from her position as a contract teacher effective January 5, 1983. DONE and ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N.E. Second Avenue Miami, Florida 33132 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Dr. Leonard Britton, Superintendent Dade County Public Schools Lindsey Hopkins Building 1410 Northeast Second Avenue Miami, Florida 33132
