The Issue Whether the Duval County School Board (Board) may terminate Respondent, Cleveland F. William, Jr.'s, employment as a teacher based upon incompetence under the Duval Country Teachers Tenure Act (the Act). This issue is dependent upon whether the Board showed Respondent to be incompetent and whether the Board complied with the procedural requirements of the Act.
Findings Of Fact Respondent was first assigned to Fort Caroline Middle School during the academic year 2000-2001 to teach 6th grade science. Kathy Kassees was the principal at Fort Caroline Middle School during that school year. Respondent's brother was extremely ill and died during the school year. Respondent's performance evaluation for that school year was less than satisfactory. See Exhibit 2, 2000-2001 Performance Evaluation. Respondent concedes that his performance in 2000-2001 was less than satisfactory. See paragraph 56 of Respondent's Post-hearing Brief. When a tenured teacher in the Duval County system has a performance evaluation of less than satisfactory, the teacher may elect to transfer to another school, and Respondent exercised that option for the school year 2001-2002. Respondent was moved to Stillwell where he was assigned to teach 7th grade science. In addition, he was assigned for the first time to teach inclusion classes. Inclusion classes are made up of students who are exceptional education students who may have various exceptionalities. These exceptionalities may include disabilities such as deafness, emotional and behavioral problems, and developmental disabilities. Behavioral problems may include students diagnosed with attention deficit disorder and hyperactivity. Stillwell utilizes a program of instruction called the America's Choice Plan (ACP). The ACP is a comprehensive educational program which covers all aspects of instruction, organization of the classroom, and display of student materials in the classroom. ACP has its own vocabulary of terms to describe activities and things. For example, "artifacts" refers to student work and other materials posted in the classroom. It is expected that "artifacts" will be posted and changed periodically. Weekly meetings to discuss the system are called "Tending the Garden" meetings. ACP had been used at Stillwell previously and the returning faculty were familiar with it. Respondent had never worked with ACP before. Ms. Kassees had prepared a Success Plan for Respondent after he received his unsatisfactory evaluation to help him improve his deficiencies. Respondent took this plan with him to Stillwell, but the plan did not address ACP or inclusion classes. Mr. Marjenhoff, the principal at Stillwell, met with Respondent and discussed Marjenhoff's expectation of Respondent. They did not discuss any special requirements or changes necessitated by ACP or inclusion classes. Petitioner was unable to establish that it had prepared and delivered a new Success Plan to Petitioner at Stillwell. After his poor evaluation in February of 2002, Respondent asked Mr. Marjenhoff for a copy of the Success Plan and one was produced which was signed by Mr. Marjenhoff and dated August 6, 2001, and by Respondent on March 27, 2002. See Exhibit 13. Respondent did attend various ACP, "Tending the Garden" in-service educational classes presented by Dianne Rahn; Urban Systemic Initiative (USI) seminars presented by Rose Curry; and classes presented by his department head, Margarita Arroyo. His attendance and punctuality at these meetings was on par with his peers. The first indication of evaluative inspections came in a November 28, 2001, memo to Respondent from Marjenhoff stating that Dianne Dunn, a cadre member, would be contacting him about setting up a classroom visit. She did not conduct a visit until January 28, 2002. See Exhibit 11 and attachments. The annual evaluation of faculty occurs in February. Petitioner concedes that other than the cadre work by Dunn and some instruction on USI by Curry, little was done by way of individualized in-service training to address Respondent's shortcomings. Respondent was not afforded much in the way of unique, individualized oral counseling or critiques of his performance during the first part of the school year. See paragraphs 21 and 22 of Petitioner's Post-hearing Brief. A review of Curry's visits reflects she met with Respondent approximately once each month for a rough average of an hour, with the exception of the first meeting which was four hours. Curry's logs do not reflect the corrective actions taken with regard to Respondent's teaching. This hardly constitutes an accelerated effort to improve Respondents performance. See Exhibit 21. The dates of the various class visits and evaluations by Marjenhoff are in February and March. See Exhibits 12, 18 and 19. A review of the records of the in-class visits and commentaries by the observers reveal that too many general recommendations were made rather than specific, concrete changes to implement. For example, Darrell Perry visited Respondent's class and was concerned about its physical organization, i.e., where the television was located, the direction in which the seats were oriented, and where Respondent's desks was located. This was written up in March, which was late in the year to raise these issues, and Perry did not suggest or volunteer to help Respondent alter the room to meet Perry's expectations. Also see Exhibit 11 and attachments. In sum, there was too much jargon and too little performance-oriented, hands-on correction of Respondent. Memoranda relating to Respondent's performance all seem to be dated after January 2002. See Exhibits 16 and 17. The corrections that were made came too late to have a meaningful impact upon the improvement of Respondent's teaching performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board provide Respondent another year in which timely and appropriate in-service training is provided to correct his deficiencies in teaching. DONE AND ENTERED this 29th day of January, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2003. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Michael B. Wedner, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, by engaging in unsolicited and unwanted sexually or romantically oriented behavior toward a subordinate female employee, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Gary D. Latham (Latham), began serving as a member of the Florida Parole Commission (Parole Commission) on July 24, 1992. At the time of the final hearing, he was continuing to serve as a parole commissioner. Claretha Billingslea Walker started to work for the Parole Commission on May 1, 1991, as an administrative secretary to the general counsel's office. At all times pertinent to this Complaint, she was known as Claretha Billingslea and will be referred to in this recommended order as Ms. Billingslea. Effective May 27, 1994, Ms. Billingslea was promoted to the position of executive secretary to Commissioner Judith Wolson. On July 1, 1994, Ms. Wolson became Chairman of the Parole Commission. Ms. Billingslea was promoted to the position of senior executive secretary to the chairman. When a potential opening arose, Latham and Ms. Billingslea discussed the possibility of Ms. Billingslea accepting a position as Latham's executive secretary since Latham had previously interviewed Ms. Billingslea for an executive secretary position in his office approximately two years before. Ms. Billingslea was interested in coming to work for Latham because a number of her duties had been eliminated when Ms. Wolson was made chairman, but she was concerned about making such a move because she had been with Chairman Wolson's office such a short time. Latham discussed with Chairman Wolson and her administrative assistant, Gene Strickland, the possibility of transferring Ms. Billingslea to Latham's open position. Both Chairman Wolson and Mr. Strickland agreed that it would be a good opportunity for Ms. Billingslea to learn more about the duties in a commissioner's office because the work in the chairman's office was more administrative than the work in a commissioner's office. Neither Mr. Strickland nor Chairman Wolson was dissatisfied with Ms. Billingslea's work. Prior to hiring Ms. Billingslea, Latham also discussed the hiring with his future administrative assistant, Brenda Henry, and with his wife. Effective August 5, 1994, Ms. Billinglea was reassigned to the position of executive secretary to Latham. Because there is only one position of senior executive secretary at the Parole Commission (the chairman's secretary), this reassignment was nominally a demotion. It did not act as a demotion, however, because Ms. Billingslea's salary and benefits remained unchanged. In her capacity as Latham's executive secretary, Ms. Billingslea reported directly to Latham. As a career service employee, Ms. Billingslea could not be unilaterally fired by Latham, but as her direct supervisor Latham could set the wheels in motion for her termination. Ms. Billinsglea understood that the chairman would have to approve her termination. Latham had the authority to assign tasks to Ms. Billingslea and to grant or deny her leave or flex time. From the start of Ms. Billingslea's employment in Latham's office, Latham engaged in comments and behavior of questionable propriety. He told her that he would not be able to get any work done with such a pretty secretary. Ms. Billingslea took this as a joke. On another occasion, one of Ms. Billingslea's male friends complained to her that Latham had been rude to him when he called. She thought Latham might have been upset that she was receiving too many personal calls, but when she asked Latham about it, he told her no and said, "I guess I'll just have to get used to guys calling all the time with such a pretty secretary." Latham often stared at Ms. Billingslea, looking her up and down. In describing these looks, Ms. Billingslea stated, "The way he looks at me, it is really weird. And it makes me feel uncomfortable, the way he kind of stares and looks me up and down. It will be almost as if he's going to say something but he never said anything." Once when he was looking at her in this strange way, Ms. Billingslea asked him whether there was something he wanted to say, to which he responded, "No, that was my sexy look." At this time she took it as a joke. One day Latham told Ms. Billingslea that he had been on his way to a friend's house and had gotten lost and ended up on her street. He said that he had gone by her house and that she had a nice place. He asked her why she kept her blinds closed so tightly. When the Parole Commission denies parole, a report referred to as a 947.18 report is completed, justifying the decision not to grant the parole. Procedurally, the Parole Commission will make a decision to grant or deny parole at a meeting. The case is then assigned to a commissioner to prepare a 947.18 report. The report is prepared in the office of the commissioner, and two weeks after the initial consideration the case is placed back on the agenda for review and acceptance. At its meeting on September 21, 1994, the Parole Commission denied parole for an inmate who had been convicted of sexually abusing his daughters. Latham was assigned to prepare the 947.18 report. Ms. Henry drafted the report for Ms. Billingslea to type. The report was very sexually explicit. After the report was typed, Ms. Billingslea took it to Latham for his review. Both Latham and Ms. Billingslea commented that it was an interesting case. Latham closed his eyes and in a low voice began to describe the graphic details of the sexual abuse to Ms. Billingslea. Ms. Billingslea later asked Ms. Henry if the file contained any pictures. On September 27, 1994, Latham went into Ms. Billingslea's office and sat down in front of her desk. He informed her that he had "the hots" for her. He told her that she had done nothing to make him approach her in this way but that he did not know what had come over him lately; he had been attracted to a lot of young pretty women, and she was just "such a doll." He told her that he had nasty thoughts about her while he taught Sunday School. When she told him that she could not work for him if she were to be with him sexually, he responded that she would not be working for him but that he would be working for her. When she told him that she was not interested, he became defensive, stating that he had a lot of political power. His last words to her in that encounter were, "I might not be able to keep my hands to myself." Later that same day, as Ms. Billingslea was preparing to leave work, Latham asked her to stay late. Over and over, he asked her to stay and "be with him," initially standing behind her chair and preventing her from pushing back. Ms. Billingslea took Latham's remarks and actions on September 27 as an invitation to a sexual or romantic relationship, which she had neither solicited nor encouraged. Ms. Billingslea did not misunderstand Latham or his intentions. Ms. Billinsglea was afraid that her rejection of Latham's advances would cost her her job. She believed that Latham could cause her to be fired. On September 28, 1994, Ms. Billingslea was ill. She called her doctor's office and requested that the doctor call in a prescription for her to a local pharmacy. The doctor's office did call in a prescription. Ms. Billingslea advised Latham that she felt ill, to which Latham responded that she had just "better be to work." Ms. Billingslea took this remark as an admonishment not to take sick leave. On October 3, 1994, Ms. Billingslea was late for work. She tried to call the office to advise that she would be late, but no one answered the telephone. On October 3, 1994, Latham expressed concern to Ms. Billingslea that she was abusing or not accurately reporting her leave time. Ms. Billingslea perceived that Latham's attitude toward her became cool after their conversation on September 27. Latham had never said anything to Ms. Billingslea about being tardy or being absent from work prior to September 27 because he did not think that it was a big deal. After Ms. Billingslea spurned his advances, he began to voice his dissatisfaction with her work hours. Ms. Billingslea went to the Parole Commission's personnel officer, Frank Trueblood. She wanted to take time off from work to look for another job and asked Mr. Trueblood if there was any type of leave request that she could make which could not be denied by Latham. Mr. Trueblood questioned Ms. Billingslea about the underlying nature of her problems, and she told him about Latham's actions. Ms. Billingslea did not want to create a problem but wanted to find another job. Mr. Trueblood told Ms. Billingslea that she could file an informal complaint against Latham and that it would remain confidential. On October 5, 1994, Ms. Billingslea filed an informal complaint against Latham. About 5:00 p.m. that day she met with Chairman Wolson, Mr. Strickland, and Clay Phillips to discuss the situation. Chairman Wolson told Ms. Billingslea that she would be transferred to another section. Ms. Billinglea did not display eagerness to file a formal complaint against Latham. Latham saw Ms. Billingslea in Chairman Wolson's office, and after Ms. Billingslea left, he asked to speak with Chairman Wolson. Latham wanted to know what was going, on but Chairman Wolson would only tell him that Ms. Billingslea was being transferred to Clemency and that Murlene Amison would be transferred to his office as his secretary. At first Latham was upset at the news of the transfer and told Chairman Wolson that it would be setting a dangerous precedent to make the transfer. Latham told Chairman Wolson that he would like to "save face" in the matter and be the one who would offer the transfer to Ms. Amison. Latham then became exuberant about the transfer, closing his fist, punching it up with a victory signal and saying, "Yes." He left Chairman Wolson's office. A few minutes later, Latham returned to Chairman Wolson's office and told her that he thought he had figured out what had happened. He said that Ms. Billingslea had been sexually harassing him and that he had talked with her and explained that he did not want to have an affair with her. This was the first time anyone at the Parole Commission had heard Latham's claim of sexual harassment by Ms. Billingslea. On October 6, 1994, Ms. Billingslea filed a formal complaint against Latham. Latham tried to find out from Mr. Trueblood whether Ms. Billingslea had filed a sexual harassment complaint against him, but Mr. Trueblood would not tell him. Effective October 7, 1994, Ms. Billingslea was transferred to the position of executive secretary in Clemency. On October 7, 1994, Latham called Mr. Strickland to his office and thanked Mr. Strickland for the personnel move, indicating that it had "sav[ed] his butt." Latham asked Mr. Strickland to close the door and then told him that he had been attracted to Ms. Billingslea but nothing had happened, and now, because of the move, nothing would happen. Latham wanted to know what was on the paperwork regarding the transfer. Mr. Strickland told him that it indicated a lateral transfer. Latham knew that it was wrong for a supervisor to invite a subordinate employee into a sexual or romantic relationship. Since she has been at the Parole Commission, Ms. Billingslea has never received formal discipline relevant to any fact or issue in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that Gary D. Latham violated Section 112.313(6), Florida Statutes, and recommending a civil penalty of $4,000 be imposed, as well as a public censure and reprimand. DONE AND ENTERED this 8th day of September, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Virlindia Doss, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1997. Tallahassee, Florida 32399-1050 Gary D. Latham, pro se 4622 The Oaks Drive Marianna, Florida 32446 Mark Herron, Esquire Akerman, Senterfit & Eidson, P.A. 216 South Monroe Street, Suite 200 Tallahassee, Florida 32301-0503 Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman, Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact At all times pertinent to this hearing, Respondent was a public school teacher licensed by the State of Florida to teach English language at the secondary school level, and her teaching certificate was current and in full effect. The Respondent, Queen Bruton, is employed by the Duval County School Board and holds tenure under the Duval County Teacher Tenure Act. On November 22, 1982, Respondent was sent a Notice of Proposed Dismissal by the School Board indicating the Board's intention to dismiss her as a teacher upon a charge of professional incompetency. The grounds for such conclusion include an indication that Respondent received unsatisfactory evaluations of her performance for the 1980-81 and 1981-82 school years. The Duval County Teacher Tenure Act (TTA), Chapter 21197, Laws of Florida (1941), as amended, permits the discharge of a teacher for, inter alia, professional incompetency as a teacher if certain conditions are met and procedures followed. All teachers in the Duval County public schools are evaluated whenever necessary, but at least once a year. Under the rating system in effect during the 1980-81 and 1981-82 school years, an unsatisfactory rating is awarded when an evaluation contains eight or more deduction points. Ratings are: (1) satisfactory, (2) needs improvement, and (3) unsatisfactory. On the rating form in use during the time in issue here, an unsatisfactory rating results in two deduction points in Items 1 through 27, and one deduction point in Items 28 through 36. An evaluation of "needs improvement" does not result in any deduction points. The School Board of Duval County has not, in any formal way, defined professional incompetence. The evaluation process is but one tool in the management of teacher employment. An unsatisfactory evaluation is not, therefore, conclusive of professional incompetence, but is one factor in that judgmental decision. The procedure used by the School Board in evaluating teacher performance was not adopted in conformity with the Administrative Procedure Act. At the time of adoption, the School Board was operating under teacher working conditions that had been implemented after extensive bargaining between the School Board and the teachers' union. These working conditions contained extensive provisions involving "teacher evaluation." When a contract was finally agreed upon between the School Board and the teachers' union, it contained provisions concerning teacher evaluation identical to those which were in effect under the working conditions previous to the implementation of the contract. These provisions, therefore, do not constitute rules "as defined in Section 120.52, Florida Statutes," but instead constitute guidelines for the evaluation of teacher performance arrived at not by decision of the School Board under conditions which require public hearing but jointly by agreement of the parties to the negotiations of the teacher contract between the School Board and the union, a collective bargaining agreement. Warren K. Kennedy was in Respondent's sophomore English class at Forrest Senior High School in Jacksonville during the 1980-81 school year. At one point during the school year, Kennedy saw a series of approximately 22 sexually explicit words or phrases written on the blackboard in Respondent's room. Kennedy copied these words and notified the principal, who went to Respondent's classroom and saw them himself. These words were placed on the board by someone other than Respondent, with her permission, and consisted of a part of an exercise in outlining. As such, Respondent claims the words themselves mean nothing, but words of that nature, including "orgasms, sexual intercourse, French tickler, blow job, condoms, dildo, masturbation, orgy," and the like serve no legitimate purpose in, and are not a legitimate part of, a sophomore English class. Respondent's classroom that year was chaotic. Students did little work, but instead talked openly and freely. Respondent sat quietly at her desk doing paperwork unless the noise got so great as to disturb other classes. Students felt free to walk out of class with impunity. Cursing was prevalent in class, and discipline was nonexistent. Defacing of school property occurred on at least one occasion with Respondent taking no corrective action. As a result, several students and the parents of other students requested their transfer from Respondent's class to another. Respondent was also unreliable in submitting grades and reports in a timely fashion. Observations of Respondent in the classroom environment by several different individuals revealed she did not insist her students come to class equipped with the proper supplies for effective writing or textbook activity. She rarely utilized visual aids pertinent to the matter being discussed. Classroom discussion with students did not generally involve a broad sampling of the class, but was focused on only a few class members. Her questions to the students were often vague and confusing to the students. Respondent's principal during that school year, Ronel J. Poppel, at whose request the above observations were made, himself observed Respondent in the classroom on several occasions. As a result of the input from those requested observations and of his own observations, he prepared an evaluation form on Respondent on March 15, 1981, which bore an overall rating of unsatisfactory and reflected that her performance was declining. This report, which reflected 7 of 36 items as unsatisfactory (12 total deduction points), had 20 other items rated as "needs improvement" and contained such written-in suggestions as "needs classroom management techniques, needs better standards of behavior, needs to have long-range planning from the beginning of the year, needs to show more enthusiasm for teaching--needs more variety in methods of teaching," and "should use better judgment in selection of topics." As a result of this evaluation, the observations of her principal and others, and the several counseling periods during which Respondent's deficiencies were pointed out to her along with suggestions for improvement, Respondent was put on notice of her failing performance and afforded the opportunity to take advantage of teacher education counseling (TEC) and, while she did enroll in at least one improvement course, failed to take full advantage of the available opportunities. Poppel's evaluation of Respondent as an incompetent teacher is based on: His personal observation; Evaluation by other professionals; Parent complaint follow-up; Her demonstrated lack of effective planning; Her lack of enforcement of school policies; Her lack of or inability to motivate students; Observed and reported chaotic classroom deportment; Her failure to keep proper records; and Her failure to leave lesson plans for substitutes. Notwithstanding the above, Respondent was well versed in the subject matter she was to teach and had the subjective background to be an excellent teacher. Her shortcomings, as described above, however, far outweighed the positive aspects of her credentials. Respondent was transferred for the 1981-82 school year to Fletcher High School in Jacksonville where she was placed under the supervision of Dr. Ragans, Principal, to teach English. Dr. Ragans spoke to Mr. Poppel, her former principal, about Respondent's weak areas so that he could develop plans to help her in those areas. In an effort to prepare Respondent for the coming year and to ensure she was fully aware of school policies and standards, Dr. Ragans held an extensive conference with Respondent to discuss her previous year's unsatisfactory rating and to make plans to remedy or remediate those areas. On August 25, 1981, he wrote a letter to Respondent in which he reiterated the items discussed previously. Review of this letter reveals there could be little doubt of what Dr. Ragans expected. Nonetheless, when he personally observed her in her classroom less than a month later, he found many of the same weaknesses previously identified, such as a noisy classroom environment, talking by students without being called on, Respondent appearing preoccupied with desk work, and inadequate lesson plans. In the observation report, he made numerous suggestions for improvement and offered Respondent the opportunity to a conference which she did not request. Prior to that observation, however, on September 8, 1981, Dr. Ragans and Respondent met with Dr. Jeff Weathers, TEC consultant for the School Board, in a full discussion of her professional shortcomings, at which meeting a suggestion was made that Respondent enroll in certain university-level courses in classroom management and motivation. Respondent was somewhat reluctant to take these courses because she felt they might interfere with her planning and her preparation for classes. Nonetheless, she did attend one class. Dr. Ragans had advised her he would arrange for substitute teachers for her so that she could take available classes. She was also invited to meet with master teachers in the school to seek assistance and to observe them, and she did in fact do so. In addition, a program was set up for her lesson plans to be reviewed by experts at the School Board. Respondent denies she ever submitted these plans, but according to Judith B. Silas, a resource teacher at School Board headquarters who reviewed Respondent's plans in December, 1981, her plans were confusing and lacking a consistent format: the dates on the plans reflect they were from an earlier series of years; objective numbers did not refer to the 1981 Curriculum Guide and did not cross-reference; and some included material had no relationship to plans or lessons. Ms. Silas's comments, forwarded to the school in February, 1982, were discussed with Respondent. A follow-up letter dated September 25, 1981, outlining the substance of the joint meeting with Dr. Weathers, was forwarded to Respondent. Shortly thereafter, on October 29, 1981, Dr. Ragans prepared a preliminary evaluation on Respondent rated overall as unsatisfactory in which 13 items were rated that way and 12 more rated as "needs to improve." On November 25, 1981, Respondent was provided with a lesson presentation checklist drawn by Dr. Weathers for her to use along with a notice of several night courses available to Respondent and a notice of a proposed observation of another teacher by Dr. Weathers and Respondent on December 14, 1981. After this observation, Dr. Weathers and Respondent discussed the positive aspects of that teacher's operation that Respondent could and should emulate. A new classroom observation of Respondent was set for January, 1982. In the interim, in January, 1982, Dr. Ragans received at least one parent request for a student to be transferred from Respondent's class because the classroom environment was noisy, unruly, and not conducive to learning. As a result of this letter and other parent contacts of a similar nature, Dr. Ragans had several informal discussions with Respondent during this period. On February 23, 1982, Respondent requested a conference with Dr. Ragans on her upcoming evaluation which was, she understood, to be unsatisfactory from a letter to her on February 5, 1982, from Dr. Ragans. This rating, conducted on February 2, 1982, but not signed by Dr. Ragans until March 3, 1982, was unsatisfactory, containing 14 items so marked and 13 marked "needs to improve." At the conference, held the same day as requested, Dr. Ragans advised Respondent he still felt she had marked deficiencies previously indicated regarding classroom control, authority, respect, lesson plans coordination, classroom planning, her failure to provide purposeful learning experiences, no student motivation, and her apparent inability to be understood by her students. Also cited to her were the continuing parent complaints and those of other teachers that their classrooms, used by her (she was a traveling teacher with no room of her own), had been damaged by her students. Much of this had previously been outlined in Dr. Ragans' February 2, 1982, letter indicating his intent to rate Respondent as unsatisfactory. Both Dr. Weathers and another school district supervisor, Dr. Henderson, observed Respondent in the classroom situation in late January or early February, 1982. Both individuals identified the same deficiencies as previously noted by so many others, and both made recommendations for improvement which were passed on, intact, to Respondent. In early March, 1982, Dr. Ragans advised Respondent in writing of his intent to evaluate her on March 15, 1982, to see if she had made any improvement. He did this because of Respondent's feeling that the previous evaluation had not given her enough time to work out improvements. This latest evaluation was also overall unsatisfactory. Two days later, on March 17, 1982, Respondent indicated in writing that she did not accept this evaluation. On April 30, 1982, Dr. Ragans again visited Respondent's classroom so that, if she had markedly improved, he could try to extend her contract or change her evaluation before the end of the school year. However, he could observe no appreciable change. Shortly after this visit, on May 3, he discussed with Respondent complaints he had received from several parents about warnings she had sent out on some students which inconsistently showed both satisfactory performance and danger of failing on the same form. She explained this as all students, including straight "A" students, who had not taken the MLST (test) were in danger of failing. Dr. Ragans felt this excuse was feeble and unjustified and demonstrated poor judgment on her part. All this was confirmed in a letter on May 17. A complaint from a parent of one of Respondent's students, received on June 11, 1982, initiated an audit of the grades given by Respondent during the school year. Results of this audit revealed at least 68 errors involving 46 students, including three students who received passing grades when they, in fact, had failed and should have been in summer school. A total of 13 student grades had to be changed, requiring a letter of notification and apology from the principal. Respondent did not deny the inconsistencies shown in the audit, but defended them on the basis of, in many cases, their being the result of her exercising her discretion and prerogative to award a grade different from that supported by recorded achievement if, in her opinion, other factors so dictated. In any case, the number of inconsistencies requiring a grade change was substantially higher than is normal. During the 1981-82 school year, Respondent had not been assigned a classroom of her own, but instead met and taught her classes in the rooms assigned to other teachers. This situation, while not unique to Respondent and one which several other teachers had as well, is nonetheless a definite handicap to any teacher. In an effort to alleviate the impact of this situation, all Respondent's rooms were scheduled as geographically close together as possible, and she was assigned only one subject to teach. Therefore, though she may have had several class periods which progressed at different speeds, the planning and preparation was similar and much less an arduous task than if she had different subjects to prepare for. In any case, there is little relationship between this and discipline and control in the classroom. Dr. Mary Henderson, Director of Language Arts/Reading for the Duval County School Board, observed Respondent in the classroom during both the 1980- 81 and 1981-82 school years at two different schools. Recognizing that Respondent has definite strengths in her knowledge of the subject matter to be taught and her recognition of and communication to the students of the relationship of their lessons to the test requirements, Dr. Henderson still felt Respondent was not a competent teacher. On both occasions, she found Respondent's lesson plans to be inadequate, her techniques in classroom management were deficient, she failed to make effective use of the students' time, and she failed to effectively motivate her students to participate in the classroom activities. Throughout all this period, according to both supervisors and others who observed her, Respondent always maintained a pleasant, calm, positive, and cooperative approach to all with whom she came into contact. At no time did she show hostility or resentment. Also, there was never a question as to her knowledge of the subject matter. Respondent possesses a bachelor's degree in English and a master's degree in administration and supervision. She has sufficient credit hours to qualify for a major in Spanish. She has also taken several in-service courses in such subjects as linguistics, methods of curriculum and instruction, British literature, and school administration. She is certified to teach English, Spanish, and typing. She has been a teacher in several Florida school systems for 29 years, of which the last 21 years were in various Jacksonville area schools. She is tenured. She was selected for summer school employment in 1980, while at Forrest High School, even though tenure does not ensure selection to teach summer school. During the 1980-81 school year, Respondent was caring for the aunt who raised her and who was suffering from terminal cancer. This required frequent travel back and forth to another part of the state, and in addition to being a physical burden, constituted a severe strain on her mental state. During that year, she started out teaching only twelfth grade classes, but as a result of a reduction in class sizes during the school year, she was given some additional tenth grade classes for which she had not prepared. Respondent feels her classroom discipline was not so unusual as to be remarkable. She feels she maintained classroom discipline as well as required and contested the allegations that she rarely referred students to the administration for additional discipline. She made all reasonable effort to improve her performance by enrolling in some of the courses recommended by Drs. Weathers and Ragans, but had to wait until the second semester because she did not get the information on the first semester courses until after they had started. The classes she took urged the use of listening and negotiating skills rather than the authoritative method in dealing with students. She tried to implement what she learned in her classrooms and feels she succeeded regardless of what the testimony shows. In addition, she took a course dealing with self- concept and self-confidence and applied for admission to Jacksonville University's master of arts program in an effort to upgrade her skills. Respondent admits that at the beginning of the 1981-82 school year, she was not using formal lesson plans. She had been asked by the administration for plans on a weekly basis and had jotted down ideas on paper. To formulate these ideas, she used prior years lesson plans, but did not turn any of these in. This does not track with Ms. Silas's testimony that the Respondent's plans she reviewed appeared to be from prior years. I find that prior years' plans were used by Respondent extensively and how these plans were transmitted to Ms. Silas for review is immaterial. Respondent, based on the above, while possessing the necessary technical qualifications to perform as a teacher, while possessing the appropriate knowledge of her subject matter, and while possessing the desire to impart that knowledge to her students, is nonetheless incompetent to conduct a class, maintain proper discipline, and generate adequate student motivation to accomplish these desired ends.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be removed from classroom teaching duties and be assigned some other function within the school system until such time, unless sooner released for other good cause, as she can retire with maximum benefits. RECOMMENDED this 1st day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of September, 1983. COPIES FURNISHED: Gary E. Eckstine, Esquire Chief Administrative Hearings Section City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 William F. Kachergus, Esquire Maness & Kachergus 502 Florida Theatre Building Jacksonville, Florida 32202 Mr. Herb A. Sang Superintendent Duval County Public Schools 1701 Prudential Drive Jacksonville, Florida 32207
The Issue Whether the Petitioners have standing to institute a rule challenge proceeding under Section 120.56, Florida Statutes. Whether a school board may delegate the authority to suspend an employee without pay to the superintendent in specific instances for a limited period of time.
Findings Of Fact The Petitioner, COLLIER COUNTY EDUCATION ASSOCIATION, (hereinafter CCEA) is the instructional bargaining unit for teachers in the Collier County School District. The Petitioner, COLLIER SUPPORT PERSONNEL-NATIONAL EDUCATION ASSOCIATION, (hereinafter CSP-NEA) is the certified bargaining agent for the non-instructional employees of the Collier County School District. The above mentioned Petitioners are affiliates of the Petitioner, FLORIDA TEACHING PROFESSION NATIONAL EDUCATION ASSOCIATION (hereinafter FTPNEA). As a result of collective bargaining agreements which allow the Petitioners CCEA and CSP-NEA to represent specific categories of employees of the school district, sixty five to seventy per cent of these employees are represented by these associations.. The Respondent SCHOOL BOARD OF COLLIER COUNTY, (hereinafter SCHOOL BOARD) has a rule that delegates the authority to suspend employees wholly or partially without pay to the superintendent. Under Rule No. R-18/81, such a suspension cannot exceed a period of three days, and the superintendent's authority is limited to five situations which have been specifically set forth in the body of the rule. A suspension is authorized only if the superintendent finds that the employee has: a) been absent without leave, b) been insubordinate, c) endangered the health or well-being of a fellow employee or of a student or students, d) willfully neglected duty, e) been intoxicated, consumed an alcoholic beverage, or used a controlled substance (unless prescribed by a physician,) while working. The rule cites Sections 230.23 and 230.33, Florida Statutes, as the authority for the implementation of this delegation process. The rule was adopted can December 17, 1981. Rule No. R-18/81 requires that any employee suspended by the superintendent under this rule be given all due process rights under the Florida Statutes, including those authorized by the Administrative Procedures Act. Pursuant to Rule No. R-18/81, the superintendent has suspended at least two employees in 1988. One of these employees is Mr. Robert Koy, who is represented by the Petitioner, CSP-NEA, in a proceeding currently before the Division of Administrative Hearings in which the employee's substantial interests are being determined. The process and procedures utilized by the Respondent SCHOOL BOARD in its suspension of employees without pay falls within the general scope of interests and activities of all of the Petitioners in this case. A substantial number of the members of the Petitioners CCEA and CSP- NEA are substantially affected by the challenged rule as it involves the disciplinary procedures used by the Respondent SCHOOL BOARD to manage its employees. Such procedures are included in the agreement between the Collier County Public Schools and the Petitioner CSP-NEA, which is in effect from October 1, 1987 through June 30, 1990. This agreement has been admitted into evidence in this proceeding. The relief sought by all of the Petitioners in this proceeding is that Rule No. R-18/81 be declared invalid. This relief is an appropriate remedy for each of the Petitioners to seek on behalf of its members in a rule challenge proceeding.
Findings Of Fact At all times pertinent to the allegations treated herein, Respondent, William Wyche, held a Florida Teaching Certificate number 106113, issued on October 29, 1980, covering the area of industrial arts. Respondent applied for a Florida teaching certificate by submitting the required application form and documentation on or about October 20, 1980. At the time of submission, Respondent replied "no" to the question in Section V of the form which asks: "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation. . .?" This answer was false in that: On September 20, 1979, respondent was found guilty of driving while his license was suspended, and fined $50.00; On March 20, 1980, Respondent was found guilty of obtaining property by worthless check and fined $25.00; On March 20, 1980, Respondent was found guilty of driving with a suspended license and fined $100.00; On April 2, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00; and, On April 25, 1980, Respondent was found guilty of obtaining property by worthless check and was fined $25.00. On that same date, in a separate case involving an identical charge, adjudication was withheld but Respondent was placed on probation for sixty days. Respondent explains the check charges on the basis that at the time they took place, all within a few weeks of each other, his bank account had been garnished and because of that garnishment, though he had ample funds in his account to honor these checks, the bank did not honor them. There were quite a few checks dishonored for this reason-so many, in fact, that he lost track of some of them and though he redeemed most, he failed to redeem these. As to the convictions for driving with a suspended license, he thought these were minor traffic offenses that did not have to be listed. Respondent was employed as an industrial arts (IA) teacher at Kirby Smith Junior High School (KSJHS) in Jacksonville, Florida during the 1981-82 school year, teaching in the metal shop. During this period, he was evaluated on a regular basis, based on observations and evaluations by other school officials carried on at various times throughout the school year. During these evaluations, such things as classroom conditions, the instructor's presentations, the preparation of lesson plans, and the use of lesson plans as guidelines for in-class instruction were considered. Lonnie W. Davenport was assistant principal for curriculum at KSJHS during this period and had to insure that teaching was taking place properly in both form and substance. To do this, he contacted his teachers daily and also relied on observations such as described above, and reports submitted to him. These reports were regarding such things as student class size, grade reports by teachers, black/white student count in the homerooms, and teachers' lesson plans which were required from each teacher weekly. While he has no formal IA training, he has a lot of experience in the area. Mr. Davenport first took serious note of the Respondent in mid- December, 1981 when he noted that Respondent had not submitted complete lesson plans. There were holes in those submitted relating to time and quality. In addition, the principal had asked him to look into reported irregularities in Respondent's classroom. His examination of Respondent's lesson plans showed that they were inadequate because they: did not conform to the form required; did not cover the subject matter sufficiently; did not follow a time sequence properly; and, were not sufficiently specific. They should have broken down the instruction into segments for skill development on a step-by-step, day-by-day basis. In short, Respondent's plans did not adequately tell what he was intending to do in his classroom. As to Respondent's teaching, Davenport's observation showed that Respondent: had no plans to show what was expected of his students; maintained the shop in a depressing state. (Here, however, it was admitted that this school was old and the shop dingy, and Respondent could not control all of that. However, Respondent's teaching aids, such as posters, which were old, faded, and torn, added to the dinginess.) allowed shop metal to lay around the shop without being placed in stock storage, creating a safety hazard; failed to safeguard and neglected one student's artwork project, and other students' projects were left out and not placed in storage for the next class period; stored a large stack of sheet metal under a work bench with cutting corners end edges protruding (also a safety hazard) allowed equipment which should have been stored to remain out; failed to have safety lines placed on the floor around individual pieces of equipment; failed to insure that soldering forges were properly shielded or securely fastened down; and, failed to post safety rules prominently in the classroom. Respondent contends that he submitted purchase orders requesting corrections be made of these deficiencies. However, with the exception of several orders for paint, some of which may have been used for the safety lines and to brighten up the area, the remainder of the purchase orders he introduced into evidence (Respondent's Composite Exhibit E), were for metal stock and other pieces of new or replacement equipment. There was no evidence of work orders for correction of any of the cited defects. Mr. Davenport's observations as to Respondent's teaching ability were that: He sat at his desk in the classroom while his students were working in the shop behind his back. As a result, students with problems had to come out of the shop to him for help rather than him being available in the shop to help; students were not required to wear safety goggles while operating power equipment nor did Respondent use them while operating the equipment; The student projects assigned or approved by Respondent were too simple and provided no challenge; The quality of the finished product turned out by Respondent's students was poor; Grading of student projects was accomplished on the basis of negotiation with the student and not on accomplishment or work quality; Once the student had completed the basic project, Respondent had no follow-up projects for them to do to use up the remainder of the school year. He, allowing them to occupy themselves with "busy work," showed to Davenport a lack of commitment to planning; Respondent was observed and overheard by Davenport to chastise a student by threatening to destroy the student's project, resulting in failure. This observation, which Respondent admitted to Davenport, is contrary to a school policy which prevents discipline from affecting an academic grade; and, In one particular class observed, Respondent came to class late. He had allowed a student to take roll, a function required of the teacher, and evidence available to Davenport, led him to believe this was a repeated- occurrence; Respondent's absence allowed students to engage in horseplay and rowdy behavior and, even when Respondent came into class, he chastised the wrong student. As to the type of instruction Respondent was observed to give, when a student would bring a project to him and ask a question, he would answer. For the most part, however, he stayed at his desk while the students worked unsupervised in the shop. He showed no initiative and did not even require students to draw plans or prepare material lists before starting work on a project. On one occasion, a student was injured in the shop. Respondent merely washed the injury, wrapped it, and sent the student back to work. Davenport, who observed this incident, told Respondent on the spot that the student should go to the office for first aid and that Respondent should file an accident report on the incident. The report was not filed by Respondent and the student went to the office at the direction of Davenport, not Respondent. This showed a complete lack of concern, according to Davenport. Davenport counseled the Respondent on the above deficiencies but observed no immediate response. He went back to Respondent's class 5-7 times subsequently for follow-up visits of from 20 minutes to an hour in duration and found little change for the better. He repeatedly offered Respondent assistance in any area to correct the shortcomings and got no response until in March, 1982, when Respondent found out he was going to get an unsatisfactory rating. He had been notified in writing, on January 8 end again on February 5, 1982, by his principal Mr. Shanklin, in addition to others, including an evaluation on January 13, 1982 by Mr. Lowell T. Hudson, supervisor of industrial arts for the school board, that his performance was deficient. These warnings could have left little doubt as to the fact his performance was below standard. Finally, on March 15, 1982, Mr. Shanklin rendered an evaluation on Respondent which showed an overall rating of unsatisfactory. Of the six areas rated in classroom management, two were satisfactory and four were unsatisfactory. Of the twenty- one areas rated in teaching effectiveness, one was satisfactory, nine were rated as needing improvement, and eleven were rated unsatisfactory. Seven of the nine areas of professional/personal characteristics were rated satisfactory, one needed improvement, and one was unsatisfactory. Even after this unsatisfactory report, the school administrative staff still tried to help Respondent. They offered him direct help themselves and, in addition, the services of county in service resource personnel to help with planning. Respondent was receptive to this verbally, but never took any steps to use them. As a result, there was no improvement in Respondent's performance but merely a maintenance of the status quo. There were some minor improvements in the condition of the shop but these were merely cosmetic and did not, in any way, relate to the quality of instruction. In Davenport's opinion, Respondent does not meet the minimum standards of competency for teachers nor can he be trained to meet these standards. He is convinced, and it is so found that Respondent's race played no part in the evaluation process. The principal at KSJHS during this period, Mr. Jack H. Shanklin, agreed with and amplified on Davenport's analysis of Respondent. His first difficulty with Respondent came in October, 1981 when the Dean of Girls wrote him a memorandum stating that Respondent had struck a student with a dowel rod. This was not the first instance of Respondent's striking students. Since Respondent was not designated as one to administer corporal punishment, she had previously warned him to send all disciplinary problems to the office. When Shanklin discussed this with Respondent, he said he did it to control the class. Shanklin did not personally evaluate Respondent until early January, 1982, after Davenport's evaluation. Prior to going to the class, he reviewed Respondent's lesson plans and found them to be sketchy. In his opinion, a substitute teacher could not have taught from them and they were "totally unacceptable." When he went into the classroom, he found the Respondent lecturing end he could not understand what Respondent was trying to get across. Respondent mumbled, was hard to understand, and used few, if any, visual aids. It was obvious to him that the students were bored, confused, and were getting nothing from the presentation. In addition, he observed the shop and found it to be dingy, dirty, and a safety hazard. Mr. Shanklin discussed these deficiencies with Respondent a few days later when he gave him the letter regarding the observation. He went into these deficiencies, and recommendations to correct them, quite thoroughly. He made suggestions as to resource people available to help and pointed out specific references to the teachers' manual. In each case, Respondent always indicated he understood and would try to comply. However, in the succeeding month leading up to the February letter, there were no signs of improvement at all nor was there any indication he had utilized the resource people. Follow-up visits to the classroom showed no change and no indication Respondent was getting anything across to the students. After the February letter was given to Respondent by Mr. Shanklin personally, they had a conference in which Shanklin discussed Respondent's deficiencies and he was told what he had to change to get a favorable evaluation. The most critical areas for improvement identified were: lesson plans safety conditions, and classroom appearance, as well as Respondent's personal untidy and nonprofessional appearance. After this discussion, Shanklin made several visits to Respondent's classroom prior to the March evaluation and did note some improvements in classroom appearance and safety, but not in lesson planning or teaching. Even after the March evaluation, up to the end of the school term, he noted no improvement. On March 29, 1982, he gave Respondent a third letter outlining areas for improvement. Respondent finished out the 1981-82 school year but because of the unsatisfactory evaluation he received, requested a transfer to a different school for the 1982-83 school year. In Shanklin's opinion, Respondent did not meet minimum standards of competency nor could he achieve them because of a lack of effort to improve. Shanklin feels Respondent does not care about the education of children and would make only superficial efforts to be trained. Race is not a factor in this evaluation. At least 50 percent of Shanklin's staff is black. He has 85 teachers on his staff and in the last three years, he has rated 13 teachers unsatisfactory. Of these, 8 or 9 were black. Therefore, of the 255 teacher evaluations he has rendered in three years, 8 or 9 unsatisfactory's were given to black teachers. Dalton D. Epting, Director of Certified Personnel for the school board, talked with Respondent about his evaluation on several occasions when Respondent was at Wolfson High School. If a teacher is on tenure status and received an unsatisfactory evaluation, he may request a transfer to a different school for a second year during which efforts are made through counseling, training, and other assistance, to help him become satisfactory. When Respondent, due to his unsatisfactory evaluation at KSJHS requested a transfer, he was assigned for the second year, to Wolfson High where, for reasons cited below, he was rated unsatisfactory for the second year in a row. Respondent was sent to Wolfson for his second year because there was no vacancy for IA teachers in the system. Even though Wolfson was also full, rather than send Respondent back to KSJHS, they sent him to Wolfson, with all its teachers, so he could have the benefit of other good teachers. Race was not a factor in this decision. It is not automatic that a teacher who receives a second consecutive unsatisfactory rating is discharged. The system looks to see if the teacher was given every assistance to improve; to ensure that everything reasonable was done by way of counseling, resource help, training, and the like, to help him. If it was and the teacher did not improve, he is discharged. Here, school officials looked at all evaluations for both years, considered the discussions held with Respondent, and the input from cadre and resource personnel, and decided that Respondent was incompetent. The decision was made, therefore, to discharge the Respondent and this action was taken. During the 1982-83 school year, after his first unsatisfactory evaluation, Respondent worked for David E. White, principal at Wolfson High School. Immediately White sat down with Respondent, along with the IA supervisor to let him know what was expected of him and what help was available to him. He observed Respondent in the classroom on several occasions and, based on these and other factors in accordance with school board rules, in an effort to let the teacher know how he or she is doing, rendered an unsatisfactory rating on Respondent on October 30, 1982. Among the examples of Respondent's incompetence which led up to this evaluation were progress reports, discipline referrals, notes, and tests prepared by Respondent, some of which went home to parents, that contained obvious spelling, grammatical, and syntax errors. At first, White became aware of concern by students and their parents about Respondent's performance. When these complaints first began, White called in the IA supervisor for the school district, Mr. Hudson, to evaluate Respondent. He began evaluating Respondent himself when the complaints continued. These complaints were to the effect, basically, that the students could not understand Respondent. (It is noted here that Respondent suffers from a slight speech impediment). He would merely read from the textbook with no teacher-student interaction. There was little lab work - mostly lecture or reading. This was not appropriate in the Graphic Arts area which consists of such skills as printing, photography, silk-screening, and the like. Consistent with the notes, reports, end referral slips prepared by Respondent, White noted a lack of grammatical correctness in his oral presentations as well. In addition, White observed that the Respondent's students were not being motivated by him and spent little time on their classroom tasks, and he also observed that Respondent's presentation was lacking in technological detail. For example, on one occasion, Respondent was discussing a box camera and failed to detail the advantages and disadvantages of this type of camera, the type of films available for it, and the merits of each. When the class period was over, White discussed the above with Respondent, suggesting how the lecture could be improved. The following day White came back to class to see how Respondent carried the discussion forward and it was as if White had not said anything. Respondent continued to omit from his lecture the substantive technological information White, as principal, felt should be taught. White concluded that Respondent was not at all familiar with the subject matter he was teaching. 1/ Respondent was also considered to be deficient in his administrative skills. He lost (or had stolen) his grade book as well as his computer worksheets twice during one 9 week period. This created seven extra hours work for the curriculum office, with 3 additional hours by Respondent, to reconstruct, his grades. The fact that Respondent had to help in this project meant someone had to cover his classes for him. It also created a lot of inquiry by parents who, on learning of the lost grade book, questioned the validity of grades given their children. In addition, Respondent's attendance registers were not turned in on time notwithstanding frequent reminders in advance of due dates. At the end of the first semester, White had a conference with Respondent about the above. Respondent began being absent due to sickness in January, 1983 and went on sick leave on 9 February, 1983 which extended through the remainder of the school year. It is important to note that Respondent's absence at this time was valid and there is no inference or insinuation to the contrary. While he was absent, on March 8, 1983, Respondent was given a notice of intent to render an unsatisfactory evaluation report which was, in fact, issued on April 15, 1983. Here it must be noted that there could have been no improvement in performance between the notice and the evaluation as Respondent was not present for duty but was on sick leave. In any event, White contends that as a result of Respondent's teaching, the school's IA program has been seriously damaged, but that has not been shown. While Respondent's classes did net prepare his students for the second year curriculum in those areas, there is no evidence that the school's program has been seriously damaged. Nonetheless, it was shown be that, as white contends, Respondent did not meet minimum county standards and could not be improved to meet them. Consequently, on August 15, 1983, the superintendent of the Duval County public schools, by certified letter, notified Respondent that because of the two years of unsatisfactory evaluations, indicating professional incompetence, he was recommending the School Board discharge Respondent from employment. Thereafter, on January 16, 1984, the Duval County School Board, by Final Order, sustained the charge of professional incompetence, and discharged Respondent as a teacher. Race was definitely not an issue in White's evaluation. In his school, at which the student body comes from the upper level socioeconomic group, and which has rated first in Area Scholastic Aptitude Test scores for the past five ears, White has no black administrators or department chairmen on his staff. One black former department chairman was promoted to vice-principal at another school. His choices for personnel are based on qualifications, not race. At the present time, 12 percent of the teachers on staff are black and over the six years White has been principal at Wolfson High, only 3 black teachers have transferred out. While at both KSJHS and Wolfson High, Respondent was encouraged to consult with Everett T. Hudson, IA supervisor for the school board, and was, in fact, evaluated by him in both settings. He evaluated Respondent first on January 14, 1982, at the request of the Principal at KSJHS end observed Respondent during his 8-9 a.m. first period class. His conclusions were: classroom and shop cleanliness were poor; it appeared that activities were winding down shop organization was poor (no clean-up schedule was posted and metal stock was laying everywhere; the students' projects were not meaningful or of a quality nature; respondent spent too much time lecturing and did not allow for sufficient shop time, and, respondent's lesson plans were not available. When seen, it was obvious Respondent had not used the curriculum guide to draft the few plans he had. When Respondent transferred to Wolfson High, the Principal there also asked Hudson to come out and evaluate Respondent on a more frequent basis. Consequently, because of this request and because of the fact that due to Respondent's previous unsatisfactory rating he was on probation, Hudson evaluated Respondent ten times, at least once in each month, between September 8, 1982 and January 5, 1983. As a result of these evaluations, it appeared to Hudson that Respondent did not know how to: plan a project; lay out equipment; identify woods and where they came from; use certain equipment. It further appeared to Hudson that Respondent's lectures were poor in that he mumbled and he didn't seem to know what he was talking about. Further, his lesson plans were poor, and he failed to keep up with an appropriate time schedule for class. As a result, Hudson ended up, himself, helping the students rather than evaluating. When these observations were made, Mr. Hudson would go over them with Respondent and give Respondent a copy. Notwithstanding he pointed out these deficiencies repeatedly, there appeared to be no improvement at all. The school system here has a remedial program for teachers to use to improve their performance. There are resource teachers to provide assistance and there are also "in service" programs for teachers. Mr. Hudson suggested Respondent take some, one of which he was teaching right at Respondent's school. As he recalls, Respondent came twice out of 15 sessions. As a result of the above, Hudson does not believe that Respondent meets minimum competency standards and could not meet them. In his opinion, Respondent: suffers from a lack of organizational ability; has lackadaisical attitude toward improving the program; would not spend the necessary time to upgrade his skills, and has a weak knowledge of the subject matter. Here again, race was not an issue in these evaluations. Hudson supervises 95 IA teachers in the Duval County school system and is the only administrator. Of these teachers, approximately 25 are black. Over 13 years, he has been called in to evaluate, like this, 5 or 6 teachers, only one of whom was black, and of this number, only 2 have been discharged. Respondent has a Bachelor of Science decree in Education and a Masters degree in Industrial Education, both from Florida A & M University. In addition, he has attended a leadership development course at Michigan State University, military classes in the same while in the army at Ft. Dix, New Jersey, and numerous workshops in Florida at his own expense. It was his hope, when he started working in Duval County, to develop some feel for the IA field in that school system As a result of his experience there, he is of the opinion that the entire IA program is underfunded. Students have to pay for the wood and metal materials they use to build a prefect. He urges that without materials and equipment, a teacher cannot teach, a point concerned by Mr. Davenport, and that was the reason he submitted the purchase orders he did at KSJHS. In that regard, it would appear that about the time Respondent was teaching at KSJHS in 1981, a report by an Inspector (Jenkins) from the school district offices, reflected that materials and equipment in Respondent's class area did not meet minimum state requirements. In addition, there was some problem regarding the excessive size of the class. This problem was immediately corrected end certification in this area was restored. He also contends that a teacher's teaching style may differ from that of his principal's and still be correct. With regard to the April 15, 1953 unsatisfactory evaluation, Respondent contends, in an attempt to contest his rating, that since he was out sick much of the month of January, 1983, and all of the time from February 9, 1983 to the end of the school year, a rating dated in mid April would cover as large a period of time when he was not there as when he was. The Teacher Tenure Act under which this system operates provides for a second full year of evaluation before discharge. Since he was sick for half the second year, he contends, his discharge was not valid. He wants to fulfill his probationary period to prove he is a worthy teacher.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is, therefore: RECOMMENDED that Respondent, William Wyche's teacher certificate issued by the State of Florida be revoked for a period of three years, with provision for reinstatement as provided for by statute. DONE and RECOMMENDED this 16th day of August, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk with the Division of Administrative Hearings this 16th day of August, 1984.
Findings Of Fact Pursuant to the Order of the Second District Court of Appeal, Dr. Spiegel was reinstated as Chairman of the Orthopaedic Department at the University of South Florida (USF), retroactive to October 31, 1988. He was given a contract as Chairman to run until October 19, 1990. On February 2, 1990, USF commenced proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department, and the matter was referred to the Division of Administrative Hearings for a formal 120.57(1), Florida Statutes, hearing. Prior to the commencement of the formal hearing, Dr. Spiegel's contract as Chairman of the Orthopaedic Department expired and was not renewed by the USF. On the expiration date of that contract, October 19, 1990, the USF proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department became moot. Dr. Spiegel's appointment as Chairman of the Orthopaedic Department ended as provided in this contract, the contract was not renewed, and Dr. Spiegel was no longer chairman of the Orthopaedic Department. Dr. Spiegel timely filed a grievance to challenge the non-renewal of his contract as Chairman of the Orthopaedic Department. By stipulation of the parties, the issues raised in the grievance merged into the instant proceedings to remove Dr. Spiegel as Chairman of the Orthopaedic Department. Since that issue became moot with the expiration of Dr. Spiegel's contract on October 19, 1990, the only issue now remaining is whether the failure to renew Dr. Spiegel's contract was in violation of Dr. Spiegel's right to academic freedom or for the alleged impermissible violation of his First Amendment right to freedom of speech. In other words, the allegation is that Dr. Spiegel's contract was not renewed because he exercised the rights guaranteed to him under the First Amendment of the United States Constitution.
The Issue The issue in this case is whether Respondent, Gregory Adams, committed the offenses alleged in an Administrative Complaint issued by Petitioner, and dated February 20, 2003, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. The Department of Education, which the Commissioner was the head of at the times material to this case, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 1012.795, Florida Statutes (2003),2 against teachers holding Florida educator's certificates. §§ 20.15 and 1012.796(1), Fla. Stat. The Education Practices Commission (hereinafter referred to as the "EPC"), is charged with the responsibility of imposing discipline for any violation proscribed in Section 1012.795, Florida Statutes. § 1012.795(1), Fla. Stat. Gregory Adams holds Florida Educator's Certificate No. 763527, valid through June 30, 2003, covering the area of Elementary Education. At the times material to this proceeding, Mr. Adams was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools"). Mr. Adams, the youngest of eight children, earned a bachelor of science and a master’s degree, both in elementary education. Mr. Adams has been employed as a teacher by M-D Public Schools since 1996. Mr. Adams began his employment in August 1996 at Rodondo Elementary School, where he remained until August 1998. Since 1998 and at all times pertinent to this matter, Mr. Adams was employed as a second-grade teacher at William Chapman Elementary School (hereinafter referred to as "Chapman"). Chapman is located in Homestead, Dade County, Florida.3 The November 14, 2000, Incident. On November 14, 2000, M.S. and other students were in the second-grade classroom of Millie Johnson and Leah Gilliard,4 Chapman teachers. While Ms. Johnson was temporarily out of the room, Ms. Gilliard directed a child, identified in this proceeding only as "L.", to collect books from the other students. M.S., without Ms. Gilliard's permission, joined L. in collecting the books and the two boys became disruptive. M.S. was eight or nine years of age at the time of the incident. While he took some learning disability classes, he was an average, normal second-grade student. M.S. was and still is slight for his age. Of Spanish heritage, M.S. speaks both Spanish and English, the latter with a relatively heavy accent. Ms. Gilliard decided to discipline L. and M.S. for their misbehavior by utilizing a "time-out" procedure. This informal procedure, which was utilized by some teachers at Chapman but has never been an approved M-D Public Schools disciplinary procedure, consisted of taking a disruptive child to another teacher and leaving the child with the other teacher until that teacher felt that the child could return to his or her classroom without disruption. Ms. Gilliard took L. and M.S. to the classroom of Mr. Adams, located in space adjacent to Ms. Johnson's and Ms. Gilliard's classroom space. Mr. Adams was about to begin a planning period and his students were, therefore, preparing to leave for another classroom Ms. Gilliard told Mr. Adams that the boys, neither of whom had been students of Mr. Adams, "need to be here for five minutes." Mr. Adams confirmed the length of time and Ms. Gilliard left. It is inferred that Ms. Gilliard specifically informed Mr. Adams that the boys needed a time-out or that Mr. Adams knew that Ms. Gilliard was utilizing the informal time-out procedure to discipline the boys. Soon after Ms. Gilliard left, L. calmed down and apologized to Mr. Adams. L. was, therefore, allowed to return to Ms. Gilliard's class. M.S., however, was not contrite. Instead, he acted disrespectful and flippant to Mr. Adams. M.S., therefore, was not returned with L. to Ms. Gilliard's class. Rather than have M.S. sit quietly in his classroom while he proceeded to perform the tasks he would have normally performed during his planning period, Mr. Adams took M.S. with him to the second floor of Chapman to the classroom of another teacher, Mr. Brett Thomas Scanlon, a first-year third-grade teacher.5 As Mr. Adams and M.S. walked into Mr. Scanlon's classroom area, they found Mr. Scanlon's third-grade students in the process of preparing to leave for another classroom. Mr. Scanlon saw Mr. Adams and M.S. standing at the edge of his classroom area, just outside the boys' and girls' bathrooms, and approached them. Mr. Adams explained to Mr. Scanlon that M.S. had been brought to him by Ms. Gilliard for being disruptive and that M.S. did not understand that his behavior was inappropriate. M.S. was still being defiant and disrespectful and exhibited the same disdain for Mr. Scanlon as he had for Mr. Adams. Due to the presence of the other children, Mr. Adams and Mr. Scanlon took M.S. just inside the entrance or foyer area of the bathrooms, on the side leading into the boys' room. While Mr. Adams and Mr. Scanlon indicated they did so to avoid embarrassment to M.S., the entrance or foyer area of a bathroom is not an appropriate location for a teacher to discuss a second-grade student's misbehavior with that student. M.S., despite the admonitions of Mr. Adams and Mr. Scanlon, remained defiant, cocky, and disrespectful. He continued to laugh, smirk, and ignore their efforts to modify his behavior and attitude. Between the time that Ms. Gilliard left M.S. with Mr. Adams and when Mr. Adams and Mr. Scanlon took M.S. into the foyer area of the bathrooms, Mr. Adams began what he was later to describe6 as "some combat procedures and strategy" or words to that effect.7 Based upon Mr. Adams' admissions and what has been proved to have occurred on November 14, 2000, it is inferred that Mr. Adams meant by this description of his actions with M.S. that he had treated M.S. in the manner in which a "drill sergeant" would treat new military recruits: yelling insults and threats at them. A number of specific examples of combat procedures or scare tactics have been attributed to Mr. Adams by the Commissioner in this case. M.S. also gave a number of specific examples. Except to the extent specifically described in this Recommended Order, those examples were not clearly and convincingly proved or, the evidence failed to prove that Mr. Adams was responsible.8 One specific example of a scare tactic used by Mr. Adams on M.S. that was proved was that Mr. Adams, while accosting M.S. in the foyer or entrance to the boys' bathroom or, later, when he took M.S. into the boys' bathroom, slammed his fist against the wall for emphasis.9 At some point while Mr. Adams and Mr. Scanlon were haranguing M.S. for his behavior and attitude, Mr. Scanlon asked M.S. "do you want to flush your life down the toilet" or words to that effect. This question prompted Mr. Adams to guide M.S. fully into the boys' bathroom, a totally inappropriate place to carry out any sort of discipline of, or counseling with, a student. Once in the bathroom, Mr. Adams took M.S. to one of the toilet stalls. Once at the toilet stall door, M.S. was guided up to the toilet and Mr. Adams, who was standing to the left and behind M.S., placed his hand on the back of M.S.'s neck or head, pushed M.S.'s head forward and down toward the toilet, flushed the toilet with his left foot and told M.S. "this is what you are doing; flushing your life down a toilet" or words to that effect. Exactly how far down Mr. Adams pushed M.S.'s head was not proved clearly and convincingly. The evidence on this point, which included, among other things, M.S.'s testimony that his head was pushed by Mr. Adams into the toilet bowl approximately an inch or more above the water, and Mr. Adams' testimony that he did not touch M.S. at all, was not clear and convincing. What was clear and convincing is that Mr. Adams did indeed place his hand on M.S., push M.S. forward toward the toilet bowl sufficiently close enough to scare M.S., flush the toilet with his foot, and suggest to M.S. that his life was "in the toilet," all inappropriate actions for a teacher to take with a student. After flushing the toilet, Mr. Adams escorted M.S. out of the bathroom and instructed him to apologize to Mr. Scanlon. M.S. reluctantly complied. M.S. was then taken to a set of stairs leading back to the first floor where he was threatened and told not to tell anyone what had happened. The evidence failed to prove, however, exactly what transpired on the stairs or what role Mr. Adams or Mr. Scanlon played in those events. Mr. Adams then escorted M.S. down the stairs and back to Ms. Gilliard's classroom. Mr. Adams instructed M.S. to apologize to Ms. Gilliard and M.S. complied. As a result of Mr. Adams' treatment, described supra, M.S. was frightened and upset. His treatment of M.S. constituted conditions harmful to learning, M.S.'s mental health, and M.S.'s physical health and/or safety. Mr. Adams' treatment of M.S. as described, supra, violated the disciplinary policy for students of the M-D Public Schools' Code of Student Conduct. At the times relevant to this matter, that policy had been incorporated into the collective bargaining agreement to which Mr. Adams was subject. Mr. Adams' treatment of M.S., while embarrassing and disparaging, was not intended by Mr. Adams to be so. Nor did Mr. Adams intend to violate or deny any legal rights to M.S. Subsequent Events. During the evening of November 14, 2000, M.S. told his mother, S.G., some of what had taken place that day with Mr. Adams and Mr. Scanlon, who he described at the time as "the brown man" and "the white man." Mr. Adams, who is African American, was later identified by M.S. as "the brown man" and Mr. Scanlon, who is white, was later identified by M.S. as "the white man." The morning of November 15, 2000, S.G. brought M.S. to school and spoke to his teacher, Ms. Johnson.10 There then followed a series of conversations between M.S. and several teachers, administrators, M-D Public Schools law-enforcement officers, and eventually the police. M.S. also testified about the matter in two administrative proceedings, including the instant proceeding. M.S. was 14 years of age at the time of his testimony in this proceeding and had discussed the matter with various individuals a minimum of approximately ten to 20 different times.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Gregory Adams violated Section 1012.795(1)(c), Florida Statutes, and, by violating Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), Section 1012.795(1)(i), Florida Statutes; suspending his teaching certificate for one year; and placing him on probation for a period of two years thereafter. DONE AND ENTERED this 11th day of June, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 11th day of June, 2004.
Findings Of Fact By operation of the Constitution of the State of Florida, Article IX, Section 4(b), the Board is charged with the operation, control and supervision of all schools within Volusia County, Florida. By state law, Section 230.01, Florida Statutes (1991), the State of Florida has delegated to the Board the responsibility for the actual operation and administration of all schools within Volusia County. Section 230.23, Florida Statutes (1991), provides that the Board will exercise, inter alia, the following general powers: (5) PERSONNEL - Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231: (a) Positions, qualifications and appointments. - Act upon written recommendations submitted by the Superintendent for positions to be filled . . . Section 230.33(7)(a), Florida Statutes, requires the Superintendent of Schools to make written nominations of persons to fill positions established by the School Board. With respect to classroom teachers employed by the Board, such employees may be granted tenure, that is the right to continuing employment subject to removal upon certain conditions. The tenure rights of classroom teachers employed by the Board are provided by the Volusia County Teachers' Tenure Law, Chapter 18964, Laws of Florida (1937), as amended (hereinafter referred to as "the Volusia County Tenure Law" or "the tenure law.") The procedure used by the Board in determining which teachers are to be granted tenure begins with a recommendation made by the principal who is supervising the teacher in question. The recommendation is made to the Board's personnel office which then passes it on to the Superintendent, who either supports the recommendation by making it to the School Board or not. Only the Board may reelect a teacher for employment, and such reelection is an essential precondition to the obtainment of status as a tenured teacher. The Volusia County Tenure Law provides for a probationary period of three years following which, if the teacher is reelected to employment for a fourth consecutive year and fills other requirements set forth in the tenure law, he or she will obtain tenure. In the case of the three individual Petitioners who are parties to this action, each was denied tenure following her third year of employment, but did obtain employment in the status of a fourth year probationary employee. The alternative to this fourth year of probation was described by the Board's representative as a "failure to enter into a contract for an additional year and termination." The Union introduced a list of three teachers besides the individual Petitioners in this action as Petitioners' Exhibit 7. Of the three persons listed in that exhibit, one, Hall, was granted tenure after her fourth year of probation. Another, Maynar, was granted tenure after his fifth year of probation. The third, Powers, was granted tenure after seven years of probationary status. The fact that two of those teachers served probationary periods in excess of four years was described to be as the result of "oversight" on the part of the Board. Petitioners' Exhibit 1 sets forth tenure treatment of classroom teachers employed by the Board from and including the 1988-89 school year to and including the 1991-92 school year. In the 1988-89 school year, 123 teachers received tenure after a third year of probation, 12 teachers were granted tenure after a fourth year of probation, 115 teachers were non-renewed (terminated) after their third year, and 23 accepted a fourth year of probation. In the 1989-90 school year, 110 teachers received tenure after their third year, 22 were granted tenure after a fourth year of probation, 25 were non-renewed, and 25 accepted a fourth year of probation. In the 1990-91 school year, 155 teachers received tenure after their third year, 25 were granted tenure after a fourth year of probation, 28 were not renewed after their third year, and 41 accepted a fourth year of probation. In the 1991-92 school year, the last year for which records were available at the time of the hearing, 198 teachers received tenure following a third year of probation, 46 were granted tenure after a fourth year of probation, 33 were not renewed after their third year of probation, and 9 accepted a fourth year of probation. On March 30, 1993, Dr. Willie D. Brennon, Assistant Superintendent for Personnel for the Board, issued an interoffice memorandum to all principals and department heads which informed those principals and department heads that contract "Status 5," that is the granting of a fifth probationary year, was no longer an option open to principals and department heads dealing with classroom teachers. The Board's Division for Personnel Services has also issued a document entitled "Procedure for Giving Notice of Non forms for the employment and treatment of teachers. The Board has not promulgated any set of standards to be used by a principal in deciding whether he or she will recommend a classroom teacher for tenure. On April 19, 1991, Pearl Coleman was employed by the Board as a classroom teacher. On that same day, Ms. Coleman's principal, Rowena Reddix, completed a form entitled "Instructional Personnel Reappointment 1991 School Year." In that form, Ms. Reddix requested that Ms. Coleman be recommended for reappointment for the 1991 On May 10, 1991, Ms. Reddix recommended that Ms. Coleman be granted tenure by completing a form entitled "Recommendation for Tenure 1991-92 School Year." However, Ms. Reddix later rescinded her recommendation that tenure be granted to Ms. Coleman. After the recision, on June 13, 1991, Ms. Reddix recommended that Ms. Coleman be appointed as a probationary (non employee for the 1991 document, Ms. Coleman accepted employment as a probationary employee by executing a sworn statement that read as follows: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991-92 school year. When Ms. Coleman signed that statement and accepted employment as a probationary employee, she understood that, but for her acceptance of this status, she would not be employed by the Board. Furthermore, although Ms. Coleman believed she would receive tenure after her fourth year of probation, she understood that she did not have tenure in that fourth year. On May 15, 1992, Mr. Gerald L. Gill, who succeeded Ms. Reddix as Ms. Coleman's principal, signed a letter, which informed Ms. Coleman that she would not be recommended for employment for the 1992-93 school year and that the Board would not enter into a contract of employment with her for any period subsequent to the 1991-92 school year. Linda L. Williams was employed by the Board as a classroom teacher for the 1989-90, 1990-91, and 1991-92 school years. In her third year of employment, Ms. Williams was employed as a classroom teacher at Woodward Avenue School and served under principal Jo Anne Rodkey. In the same year, Ms. Rodkey informed Ms. Williams that she would not be recommended for reemployment because the school was losing a unit and therefore there was no position for her at the school. On May 12, 1992, Ms. Rodkey delivered to Ms. Williams a letter informing Ms. Williams that Ms. Rodkey would not be recommending her for tenure. Subsequently, Ms. Williams applied for a position as a sixth grade teacher at Holly Hill Middle School. Ms. Williams previously had been informed by Ms. Rodkey that any further employment by the Board would be as a probationary employee. Ms. Williams specifically understood that the only way she would be hired at Holly Hill was on a probationary basis and further understood that if she had not agreed to probationary status she would not have been employed at Holly Hill Middle School. Ms. Williams accepted employment at Holly Hill under these conditions. On June 12, 1991, Petitioner Lynne Demarest was employed as a classroom teacher at South Daytona Elementary School. On that same date, Ms. Demarest executed a notarized statement which stated: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991 Subsequently, on June 14, 1991, Mr. David C. Butler, who was the principal at South Daytona Elementary School, recommended the reappointment of Ms. Demarest as a probationary employee for the 1991 time that Ms. Demarest accepted employment on probationary status, she understood that this was the only condition upon which she would be employed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is DENIED and DISMISSED. DONE and ORDERED this 12th day of October, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 October, 1993. APPENDIX TO THE FINAL ORDER IN CASE NO. 93-1862 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida Education Association et al. 1. Proposed findings of fact 1-11 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Volusia County 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-17(1-17). COPIES FURNISHED: Lorene C. Powell Chief Trial Counsel, FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Thomas M. Gonzalez Attorney at Law 109 North Brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Carroll Webb Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300
Findings Of Fact The Public Employer filed a petition for determination of managerial and confidential employees with PERC on February 21, 1975. The job positions for which managerial or confidential status is requested, and the persons who occupy the positions are set out in the petition. The petition was presented to the Public Employee Relations Commission on May 8, 1975. The hearing in this case was scheduled by notice dated August 1, 1975. The Public Employer recognized the MCEA as the exclusive bargaining agent of instructional personnel employed by the Public Employer prior to the instant petition being filed. A contract between the Public Employer and MCEA was signed on August 26, 1975, and was received in evidence at the hearing as Public Employer's Exhibit 5. The Public Employer's evidence respecting the responsibilities, duties, and day-to-day activities of the persons who occupy the positions for which managerial or confidential status is being sought was received primarily in the form of job descriptions, and a chart showing the functions of each position which justify managerial or confidential status as perceived by the Public Employer. The job descriptions were received in evidence as Public Employer's Exhibit 2. The chart was received in evidence as Public Employer's Exhibit 3. The job descriptions accurately describe the duties, responsibilities, and day- to-day activities of each position. If the persons who occupy the positions are not performing their duties in accordance with the descriptions, then they are performing their duties improperly. It is likely that if the jobs were being performed contrary to the descriptions, this fact would be known to the Superintendent. The positions for which managerial or confidential status is being sought are described in Public Employer's Exhibit 2 beginning at the following indicated page: the Assistant Superintendent for Service at page 27, the Assistant Superintendent for Instruction at page 5, the Assistant Superintendent for Business Affairs at page 32, the Director of Personnel at page 24, the Director of Instructional Support and People Personnel Services at page 20, the Director of Adult Education at page 17, the Director of Exceptional Child and Special Services at page 13, the Director of Federal Programs at page 22, the Director of Career Education at page 16, the Director of Secondary Education at page 7, the Director of Elementary Education at page 9, the Director of Vocational Education at page 15, the Director of Community Manpower Programs at page 18, the Director of Planning and Research at page 14, the Maintenance Supervisor at page 28, the Transportation Supervisor at page 29, the Supervisor of Custodial Services at page 30, the Food Service Supervisor at page 34, the High School Principal at page 8a, the Middle School Principals at page 8f, the Elementary School Principals at page 11, the Assistant High School Principals at page 8c, the Assistant Middle School Principals at page 8h, the High School Department Heads at page 8d, the Curriculum Coordinators at page 8i and 12a, the Helping Teacher at page 12c. The references in the chart which was received as Public Employer's Exhibit 3 are to paragraphs in the job descriptions set out in Public Employer's Exhibit 2. The Public Employer is seeking to implement what was described at the hearing as a "team management system" in order to accomplish management a baser level. Under this system Principals, Assistant Principals, and department Heads would take on increased management functions. Principals are expected to initiate action respecting policy changes which they consider appropriate. The School Board, the Public Employer's legislative body, is ultimately responsible for adopting policy. The School Board typically adopts policies based upon the recommendations of the elected Superintendent, the Public Employer's chief executive officer. The Principal's recommendations respecting policy, especially policy which would be applicable primarily in the Principal's school are given great weight. One recent policy making decision in which a principal played a part involved parking at Martin County High school. The school Principal advised the superintendent of a need for a change in rules and regulations respecting parking. The principal went before the Board to describe the problem, and the Board directed the Principal and the Assistant Superintendent for Service to write a new policy for the Board's consideration. This policy was formulated primarily by the school Principal and was presented to the superintendent. The superintendent presented the policy to the School Board and recommended its adoption. The School Board adopted the policy without amendment. There are ten Principals employed by the Public Employer. There are one High School Principal, three Middle School Principals, and six Elementary School Principals. The High School Principal, one Middle School Principal and one Elementary School Principal were appointed by the Public Employer to the team which negotiated a contract with the MCEA. Under the agreement that has been signed by the Public Employer and by the MCEA, the Principal is charged with administering the agreement within his or her school. The Principal takes on a primary responsibility in the grievance procedure established in the agreement. The Principal is primarily responsible for making determinations respecting hiring and firing of personnel employed at his or her school. The Principal does not have the absolute authority to hire or fire personnel. The Principal makes recommendations to the superintendent, who in turn makes recommendations to the School Board. The School Board has the ultimate authority. In Martin County the Principals' recommendations respecting hiring and firing are followed, possibly without exception. The Principal is responsible for evaluating the personnel employed at his or her school. The evaluation is done on a form that has been adopted by the School Board. The evaluation goes into the employee's personnel file, and becomes a part of the employee's permanent employment record. The Public Employer's system for formulating and administering its budget is somewhat decentralized. Money is budgeted to a school based on the number of students. The school budget, which does not include expenditures for salaries or capital improvements, is prepared by the Principal. The Principal's budget is for all school supplies including textbooks. The central administration reviews the Principal's budget and would have authority to change items that were out of line. The budget ultimately adopted by the School Board actually reflects ten separate school budgets. The Principal has no control over the amount of money that will be budgeted to his or her school, but the Principal does have considerable latitude in setting the budget priorities for his or her school. Once the budget is adopted, the Principal has the authority to make expenditures based upon the budget. The Principal signs all purchase requisitions emanating from his or her school. The duties of Assistant Principals vary among the schools in Martin County, depending in part upon the responsibilities which are delegated by the Principal to the Assistant Principal. Virtually any of the Principal's responsibilities can be delegated by the Principal to the Assistant Principal, although ultimate responsibility would remain with the Principal. Generally Assistant Principals are charged with establishing schedules, and assigning teachers. The witness Clara Bevis Fulton is presently Principal at Martin County High School. She was previously Assistant Principal. As Assistant Principal she would hold initial interviews with job applicants. If the applicant appeared satisfactory she would call in the Department Head in the area in which the applicant works and would check the applicant's references. She would evaluate the teachers based on information given to her by Department Heads, and based upon her own classroom visits. She made recommendations to the Principal respecting hiring and firing. The Principal's budget responsibilities were handled by Mrs. Fulton while she was Assistant Principal at Martin County High School. There are six Department Heads employed by the Public Employer. All of the Department heads work at Martin County High School. The Department Heads typically spend approximately 4/5 of their time as classroom teachers, and the remaining time fulfilling administrative duties. The Director of Guidance, who is classified as a Department Head, spends more than half of his time on administrative duties. Department Heads are paid on a management pay scale rather than on a teacher's pay scale. The opinions of the Department Heads respecting new employees and old employees are solicited by the Principal or Assistant Principals. The Department Heads give considerable input into teacher evaluations. Department Heads serve as the first step in the grievance procedure adopted in the collective bargaining contract that has been signed by the Public Employer and by the MCEA. The School Superintendent refers to Department Heads as the front line of management. The Principal or Assistant Principals seek information from the Department Heads respecting the budgetary needs of their department. This information would primarily amount to an explanation of the coming year's needs in relation to the past year. This budget information relates to supplies and textbooks, not to salaries. The primary function of Curriculum Coordinators is to plan and administer a school's curriculum. The Curriculum Coordinator plays a role in evaluating teachers by forwarding information to the Principal or Assistant Principals. Information is sought from the curriculum Coordinators respecting budgetary needs, especially from the perspective of the priority of conflicting needs. The Curriculum Coordinator has no classroom duties. ENTERED this 16 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: All parties of record
