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.
The Issue The issue is whether respondent should be dismissed from his position as a physical education teacher aide for the reasons cited in petitioner's letter of March 12, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Wilson McKenzie, Jr., was employed as a physical education teacher aide at St. Petersburg Challenge (SPC) in St. Petersburg, Florida. The school is a part of the public school system operated by petitioner, School Board of Pinellas County (Board). Respondent's employment with the Board began on August 16, 1990, when he was assigned as a full time physical education teacher aide at Melrose Elementary School (MES). In early September McKenzie was reassigned to work at MES during the morning hours only and then during the afternoon hours at SPC, a drop-out prevention school for disadvantaged fourth and fifth graders. Pursuant to a collective bargaining agreement between the Pinellas Educational Support Personnel Association and the Board, respondent served in a probationary status during his first six months of employment. Under the same agreement, he was continued in that status for an additional ninety days after his first evaluation. According to Article 9, Section 1 of the agreement, a probationary employee may be terminated "for any reason", and the Board's termination letter of March 12, 1991, relied upon that provision of the agreement as its authority for terminating McKenzie. Pending the outcome of this proceeding, McKenzie has remained in a suspended without pay status since March 28, 1991. The Board's Reasons for Termination Respondent's performance at MES during the morning hours was apparently satisfactory since petitioner, in its charging letter of March 12, 1991, chose not to rely upon any performance deficiencies at MES as a basis for termination. 1/ As the first ground for terminating respondent, petitioner alleged that respondent was deficient in the "area of relationships with students". To support this charge, petitioner presented the testimony of ten students, all fifth graders at SPC during school year 1990-91 and who came in contact with respondent. While some of the students gave conflicting versions of what transpired, and thus their complaints were questionable, it is found that, contrary to school policy and orders from his supervising teacher, respondent yelled at and argued with students during physical education class in an effort to enforce class discipline. In addition, he placed his hand on students' shoulders or backs and would pinch them despite their requests that he not do so, and twice called students insulting names (e.g., bitch) in the presence of other students. It was further established that on several occasions respondent went to the home of a student to discuss school problems instead of inviting the parent to come to the school. He also had difficulty in maintaining classroom discipline. Several of the students testified that respondent made them uncomfortable by "staring" at them during class or lunch period. Finally, respondent was observed by several students looking up the dress of a female student who sat on the floor with her legs spread apart. In fairness to respondent, however, it should be noted that in some instances the students were acting in an unruly fashion or were violating cafeteria rules by talking loudly and "trading" food, thus prompting respondent to yell at them. Even so, it is fair to say that respondent had numerous difficulties in his relationships with students and most of the students who testified disliked respondent and appeared to be afraid of him. In addition to the above ground, petitioner has cited respondent's failure to follow "directives from superiors" as a second reason for terminating his employment. This charge stems primarily from respondent's sponsorship of a dance program for students that he conducted after school hours. Respondent's group was known as the Very Important Kids Association and was made up of young, disadvantaged children from the south side of St. Petersburg. Respondent was told early on by various superiors, including the SPC principal, assistant principal and physical education teacher, that group activities should not be arranged during school hours, the group should not meet on school property and respondent should refrain from asking students to join his group during school hours. Despite having at least three formal conferences with SPC administrators concerning this matter, and receiving written memoranda with specific instructions, respondent continued to violate these instructions by asking students during school hours to join his group. By doing so, respondent failed to follow "directives from superiors" as alleged in the charging document. Respondent's Case Respondent, who is 27 years old, maintained at hearing that he was "set up" on these charges by unnamed individuals and that he gave his best effort at doing a good job. McKenzie pointed out that he had no problems at MES and that all problems were encountered at SPC. He stated he is sincerely interested in helping underprivileged children and offered a number of letters from third parties to corroborate this contention. Through cross-examination, respondent established that several complaints offered by the testifying students were caused by their own misbehavior and respondent's subsequent efforts to discipline them.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the allegations in the charging document and that he be terminated from his position as a teacher aide. DONE and ENTERED this 12th day of July, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1991.
The Issue The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap. At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination." The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form. Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.
Findings Of Fact The facts clearly show that the Charging Party was certified by PERC as bargaining agent for instructional personnel of the Hillsborough County School Board System on April 18, 1975, and that the public employer was the Hillsborough County School Board. Since 1969 there had bean negotiations between the HCTA and the HCSB. These negotiations had resulted in mutual agreements which had been approved as the policy of the Board for the year 1969 until 1973. Among the items negotiated during these years were a series of pay schedules. These schedules were based on training as reflected by pay differentials dependent on the individual teacher's degree, and experience, as reflected in pay differentials based on the individual teacher's years of service. After the agreement reached for 1970-71, later agreements stated that the salary schedules were based on training and experience. Compare Negotiations Agreement, 1970-71, p. 61, Salaries (Exhibit 1) with Instructional Personnel Policies, 1971, Item B-17 (Exhibit 2) and Agreement, 1973-74 and 1974-75, p. 12, Item B-8.3 (Exhibit 4). Under the terms of the 1973-75 Agreement, it was to remain in effect until June 30, 1975 and thereafter from year to year unless at least 120 days prior to June 30, 1975, either party serves written notice upon the other of its desire to terminate or makes changes to the Agreement. HCTA gave notice to the Board by a letter from Sam Rosales, President, to Dr. Raymond O. Shelton, Superintendent of Schools, Hillsborough County, (Exhibit 6) of its desire to make changes in the Agreement. On or about May 27, 1975, the Board and HCTA commenced negotiations on a new collective bargaining agreement which negotiation continued until August 19, 1975. During the month of June, 1975 it became necessary for the Board to take action to issue contracts of employment to all instructional personnel to be employed in the upcoming school year. See F.S. 230.23(5)(c)(d) and (e). The provisions mandate among other things that each contract shall state in writing definite salary amounts and definite tires of service. Section 236.02(3) provides that all instructional personnel shall be provided written contracts at least one (1) month before school begins providing for a definite salary as provided by law. The Board therefore had a legal obligation to reissue contracts in late July or August, and had to reach some decision regarding the salary amounts to be stated in the contracts. The Board's minutes for June 24 and July 1, 1975 were introduced and reflect that the Board was concerned about its fiscal position in the upcoming school year and whether it could reemploy all of the teachers who it had employed in the 1974-75 school year. It was clearly the Board's position that its foremost consideration was to prevent the necessity of any layoffs. Further, the minutes reflect that the best fiscal data available indicated that the Board would not have sufficient revenue available to pay increased salaries and pay the longevity increases. The debate on the Board clearly indicates that it would have been necessary to cut the pay of all teachers 2 percent if the step increases were implemented to stay within its budget. The comments of the Board members and Mr. Sam Rosales, who was present at both meetings, reveal that they felt the salary negotiations would be complete and the new salary schedule worked out and the contracts amended prior to the time most of the teachers would receive their step increases. The Board voted to issue reemployment contracts to all instructional staff at the same salary as the 1974-75 year and not to implement the longevity pay increases as an interim measure pending negotiations of the new salary schedule. The General Counsel and Charging Patty allege that the Board's action unilaterally set salaries for the 1975-76 year which were a subject of collective bargaining which was then in progress and therefore violated Section 447.501 (a) and (c), F.S. Their allegation is based upon the argement that the longevity pay increases were a condition of employment which remained in effect during the period of negotiation. In support of its position the General Counsel and Charging Party cite Triborough, Poughkeepsie, and Massapequa. 1/ These cases indicate that a term or condition of employment stated in a previous contract will remain in effect during the course of negotiations even if the preceding contract terminates. Further that the act of changing such a condition without consultation with the union is per se a unilateral act. The Hearing Officer would agree generally with the application of the principle stated in these cases and their applicability to the present facts. Certainly, the longevity pay increases which had been negotiated had bean paid in the past. Although the Board's affirmative action in approving reemployment contracts had been required in earlier years, this approval as generally given and the statutes would indicate the Board could only withhold approval for good cause. However, the Hearing Officer finds that the Board had a legal obligation to issue the contracts one month before the opening of school, and that the contracts had to state an exact salary amount and term of service. There was, however, no impediment from the Board consulting with the HCTA prior to its action at the negotiating session and attempting to reach some agreement. Had no agreement been reached, then the Board would have bean justified in taking unilateral action. The Board could have issued the contracts reflecting the longevity pay increases and if later it had lacked the funds, reduced the payment asserting inability to pay as another alternative solution. The General Counsel has cited the earlier decision of Pasco CTA vs. School Board of Pasco County, in which PEPC stated with regard to the defense of F.S. Subsections 230.25(5)(c-e) and 236.02(3) and (4): "We are not persuaded by Respondent's argument especially in light of the fact that it admittedly made no attempt whatsoever to notify the Charging Patty of its planned action or, indeed, inform the Charging Party that salary matters would be on the School Board's agenda. Thus, even assuming a legitimate necessity for its action, although the facts herein persuade us otherwise, the Respondent's ex parte action is sufficient to violate its duty to bargain." (emphasis supplied) The facts here reflect that Rosales was present on June 24, 1975 at the Board's meeting when the matter was first raised and spoke persuasively to convince the Board to postpone action until July 1, 1975. Rosales was again present on July 1, 1975 and again addressed the Board. Certainly HCTA was aware of the pending action by the School Board, unlike the Pasco County Case, although the Board acted without consulting HCTA at the negotiating table. The Pasco County case, while deciding against the Board on the facts, does apparently reflect PERC's recognition of the Wappinger doctrine as indicated by the emphasized portion of the quote above. In the Matter of Central School District No. 1 (Wappinger), 5 PERB 3124 (Dec. 15, 1972), the PERB recognized that there are some terms and conditions of employment which must be finalized by the beginning of the school year which must be allowed while negotiations continue. However, the Wappinger doctrine clearly does not apply in this instance because sufficient time was available to consult with HCTA on the matter. In summary the Hearing Officer finds as a matter of fact that: HCTA was a certified bargaining agent and the Board was a public employer. HCTA and the Board were negotiating a new collective bargaining agreement in June and July, 1975. The School Board had to let the contracts in July and state therein the specific amounts available pending resolution of its fiscal picture and negotiation of the contract. The school Board did notify the HCTA through Sam Rosales, who was aware of the pending proposal at least one week prior to its adoption. The terms of the 1973-75 agreement remained in effect during negotiations, and subsequent to June 30, 1975. The Board failed to raise the issue at the bargaining table in any attempt to reach a compromise and to present evidence of its fiscal inability to meet the 1973-75 contract terms. The action of the Board did not maintain the status quo, but resulted in a salary reduction under terms of the 1973-75 agreement. As to the, law, the Hearing Officer finds that: The Board, by falling to raise the matter at negotiations and by failing to present any evidence at negotiations of its inability to meet the 1973-75 contract terms, acted unilaterally to set salary terms during negotiations. Although the Hearing Officer is of the opinion that the Board acted without malice, the Board's action in unilaterally setting teachers' salaries is per se a violation of Section 447.501(1)(a) and (c), F.S. The damages are the difference between what the employees did receive between July 1, 1975 and the effective date of the new contract and what they would have received if the longevity pay increases had been paid. DONE and ORDERED this 30th day of April, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Petitioner had a contractual obligation, which it breached, to employ Respondent during the 2009-2010 school year, and, if so, what damages should be awarded.
Findings Of Fact The following is a verbatim recital of the Joint Stipulation of Facts filed by the parties on June 8, 2012: Lurana Hillard (Respondent) was employed by the St. Lucie County School District (Petitioner) as a Program Specialist for School Psychology and School Psychologists beginning in the 2005/2006 school year. Respondent was a participant in the Florida Retirement System ("FRS") and its Deferred Retirement Option Program (hereinafter "DROP"). Respondent's initial 60-month period of DROP was from July 1, 2002 through June 30, 2007. In January 2007, Respondent signed a document requesting to extend her participation in DROP beyond the initial 60- month period. A true and correct copy of the Form is attached as Exhibit B.[1/] Barbara Casteen is the Director of Student Services and Respondent's supervisor. On January 12, 2007, Barbara Casteen sent Steve Valencia, Director of FTE/Position Control, an email with a copy to Respondent regarding DROP extension. A true and correct copy of that email is attached as Exhibit A.[2/] On January 16, 2007, DROP Extension forms [sic] prescribed by the Florida Retirement System were executed by Respondent and Steve Valencia. A true and correct copy of the Form is attached as Exhibit B. Mr. Valencia had the authority, as the Superintendent's designee, to execute the form advising that that the School Board stipulates that the Respondent was eligible to participate in DROP beyond the initial 60- months. On January 23, 2007, at a regularly scheduled School Board meeting, the Board approved the Personnel Agenda which included DROP extension for Respondent.[3/] Attached is a true and correct copy of the Personnel Agenda for the January 23, 2007 meeting and minutes from the same.[4/] The Board has taken no subsequent formal action regarding Respondent's DROP status. On May 26, 2009, Barbara Casteen sent Respondent a letter advising that she would not recommend her for reappointment for the 2009-2010 school year. A true and correct copy of this letter is attached as Exhibit C. On June 30, 2009, Respondent signed a Notification of Separation from Employment Form. A true and correct copy of that Form is attached as Exhibit D. On July 29, 2009, the School Board approved Respondent's retirement. A true and correct copy of a letter from Shelby Baker, Personnel Records Specialist and Employer Notification of Employment Termination are attached as Exhibit E. Respondent initially submitted a letter of resignation pursuant to the DROP statute dated June 30, 2007. Based on request to extend DROP, Respondent submitted another letter of resignation dated June 30, 2010 pursuant to the DROP statute. Respondent received from FRS a Revised Notification of DROP Extension Benefits which is attached as Exhibit F. Attached is a true and correct copy of the FRS DROP Termination Notification as Exhibit G. Apart from the documents referred to herein, Respondent was issued no documents by the St. Lucie County School Board reflecting her employment status during the period of her DROP extension. The body of the January 12, 2007, email from Ms. Casteen to Mr. Valencia attached to the parties' Joint Stipulation of Facts as Exhibit A (1/12/07 Email) read as follows: I am approving the DROP extension for Lurana Hillard for 3 years from 7/1/07 to 6/30/10. If you need any further information, please feel free to contact me. The "Form" attached to the parties' Joint Stipulation of Facts as Exhibit B is a completed Department of Management Services, Division of Retirement (Division) form--Form DP-EXT (05/05) (DROP Extension Form)--signed in January 2007, by Ms. Hillard and by Mr. Valencia, as the Superintendent's "designee".5/ On this completed and signed DROP Extension Form (Executed Extension Form or Form), Ms. Hillard indicated that her "DROP begin date" was July 1, 2002; that her "DROP termination and resignation date" was June 30, 2007; and that she was "requesting to extend [her] DROP participation through 6/30/10 with the approval of [her] employer." The "Employer Certification" section of the Form contained the following statement made to the Division by Mr. Valencia, as the Superintendent's designee: This is to certify that the St. Lucie County School Board (agency name) has rescinded the resignation of the above named member whose position meets the definition of an instructional position. The agency has approved a new termination date of 6/30/10. This agency stipulates that this member is eligible to participate in the DROP beyond 60 months and the member will continue working in a regularly established position as a School Psychologist.[6/]
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of St. Lucie County issue a Final Order declining to award Ms. Hillard the relief requested in her Petition. S DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2012.
The Issue Whether the Respondent should be discharged from her employment as a teacher with the Duval County public school system for professional incompetency as provided in Section 4(e) of the Duval County Teacher Tenure Act?
Findings Of Fact At all times relevant to this proceeding, the Respondent was licensed by the State of Florida to teach in early childhood, biology, science, junior college and driver's education. The Respondent's license to teach is current, in full force and effect and valid through 1998. The Respondent received a bachelor's degree in biology and chemistry from Florida A & M University in 1970 and a master's degree in early childhood education from Antioch College in 1976. The Respondent has been employed as a teacher by the Petitioner since 1977. At all times relevant to this proceeding, the Respondent was employed as a tenured teacher with the Petitioner. Beginning with the 1977-78 school year, the Respondent was assigned to teach at Paxon Senior High School (hereinafter referred to as "Paxon"). The Respondent continued to teach at Paxon through and including the 1984-85 school year. Through the 1983-84 school year the Respondent received satisfactory evaluations of her performance as a teacher from the principal of Paxon. For the 1984-85 school year Mr. Frank Castellano was assigned as the principal of Paxon. This was Mr. Castellano's first year as principal of Paxon. During the 1984-85 school year, the Respondent was observed teaching by Mr. Castellano, Mr. William Jackson, the Vice-Principal of Paxon, and Dr. Jed R. Klein, the Director of Science and Environmental Studies of the Petitioner. On March 15, 1985, the Respondent was rated unsatisfactory on a Mini Evaluation Form by Mr. Castellano. This evaluation was based upon the observations of Mr. Castellano and the other individuals that had observed the Respondent listed in finding of fact 8. On April 26, 1985, the Respondent was again rated unsatisfactory by Mr. Castellano. The form used for this evaluation was a more detailed form which listed 36 factors. Mr. Castellano rated the Respondent "satisfactory" on 13 of the factors, "needs to improve" on 14 of the factors and "unsatisfactory" on 9 of the factors. The unsatisfactory factors were included in the general categories of classroom management and teaching effectiveness. Prior to evaluating the Respondent, Mr. Castellano reviewed the Respondent's previous evaluations back to 1980. Those evaluations do not note similar deficiencies to those noted by Mr. Castellano. The Respondent had had no problems with administration in the past. Although Mr. Castellano did not implement a specific program of remediation for the deficiencies he had observed in the Respondent's teaching performance, efforts were made to assist the Respondent in correcting noted deficiencies. The Respondent was provided with written summaries of the various observations and conferences were held between the Respondent and the individuals observing her. Following the unsatisfactory evaluations by Mr. Castellano, the Respondent was informed by Mr. Castellano that she had the right to transfer to another school for the 1985-86 school year. Mr. Castellano was required to inform the Respondent of this option pursuant to the Duval County Teacher Tenure Act (hereinafter referred to as the "Tenure Act"). Mr. Castellano told the Petitioner that if she did not believe that she would be treated fairly at Paxon, she might want to transfer. Mr. Castellano did not, however, try to convince the Respondent that she should transfer. Mr. Castellano recognized that the decision could only be made by the Respondent and so advised her. Although the Respondent had been at Paxon for 7 years before Mr. Castellano arrived and did not want to leave, she made the decision to request a transfer. The Respondent's decision was based upon her conclusion that she would not receive fair treatment if she remained at Paxon. The Respondent was transferred to Ed White Senior High School (hereinafter referred to as "Ed White"), where she taught during the 1985-86 school year. The Respondent was given no choice as to what school she was transferred to. Such a choice is not mandated by the Tenure Act. Nor is it a policy of the Petitioner to give such a choice. Mr. James Jaxon, the Principal of Ed White, was aware of the Respondent's unsatisfactory evaluation by Mr. Castellano. Mr. Jaxon met with the Respondent on August 23, 1985, in a pre-planning conference. In a memorandum dated August 26, 1985, Mr. Jaxon memorialized the steps that Mr. Jaxon and the Respondent had agreed on August 23, 1985, would be followed to attempt to improve the Respondent's teaching performance. Mr. Jaxon did not request that the Respondent be transferred to Ed White and would not have hired her if she had applied for a position. Mr. Jaxon was not "out to get the Respondent" as suggested by this finding of fact being proposed by the Respondent. Mr. Jaxon attempted to assist the Respondent in improving her teaching skills and provided her with an opportunity to improve her performance. The Respondent was provided in-service training during the 1985-86 school year as required by Section 4(e)(3) of the Tenure Act. The primary source of the Respondent's in-service training was provided by Ms. Gloriden J. Norris. Ms. Norris is a Teacher Education Center Consultant. She is employed by the University of North Florida and not the Petitioner. Mr. Jaxon and Ms. Norris met with the Respondent on September 4, 1985. The Respondent was informed in a memorandum dated September 5, 1985, of the steps that would be followed in assisting the Respondent. During the 1985-86 school year, Ms. Norris observed the Respondent's class on 6 different occasions: September 19, 1985, October 7, 1985, November 26, 1985, December 4, 1985, January 21, 1986 and April 25, 1986. Ms. Norris also conducted approximately 8 to 10 conferences with the Respondent, gave her written materials to assist her in improving her teaching skills and talked to the Respondent on the telephone. In addition to Ms. Norris' observations, the Respondent was observed by Mr. Jaxon (October 13 and 22, 1985, February 3 and 13, 1986 and March 5, 1986), Mr. George Paugh, the Assistant Principal/Student Services at Ed White (September 3, 5 and 26, 1985) and Dr. Klein (March 18, 1986). Written comments concerning most of the observations of the Respondent during the 1985-86 school year were provided to the Respondent. Conferences were also held with the Respondent throughout the school year. The Respondent followed up on some of the suggestions Mr. Jaxon made to her concerning improving her teaching skills and she asked about an in- service workshop. The Respondent did not sufficiently implement recommendations for improvement made to her. Ms. Norris was not able to establish a rapport with the Respondent and therefore her ability to assist the Respondent was diminished. This lack of rapport was a result of the Respondent's attitude toward those who were attempting to assist her in improving her teaching abilities. The Respondent evidenced a belief that she was being treated unfairly and that she had no significant problems as a teacher. This attitude of defensiveness hampered the efforts of Ms. Norris and others to assist the Respondent. After January 21, 1986, Ms. Norris did not check to see if the Respondent had incorporated her suggestions as to the development of a lesson plan. On October 30, 1985, Mr. Jaxon rated the Respondent's performance as unsatisfactory. Mr. Jaxon also rated the Respondent's performance unsatisfactory on March 27, 1986. Respondent's deficiencies were in the areas of classroom management and teaching effectiveness. The following deficiencies concerning the Respondent's classroom management were observed during the school years in question: The Respondent was late to class or in starting class (according to Mr. Jackson, Mr. Castellano, Mr. Jaxon and Ms. Norris); Students were late to class (according to Mr. Jackson, Dr. Klein and Mr. Jaxon); The students were allowed to dismiss themselves (according to Dr. Klein and Ms. Norris); No roll was taken (according to Mr. Jaxon); On numerous occasions students were not paying attention -- they talked, combed their hair and put on makeup, read unrelated materials including magazines and paperback books, daydreamed and slept (according to Mr. Jackson, Mr. Castellano, Dr. Klein, Mr. Paugh and Mr. Jaxon); and Some students did not have their textbooks with them (according to Mr. Jaxon). The following deficiencies concerning the Respondent's teaching effectiveness were observed during the school years in question: The Respondent did not have her lesson plans with her in the classroom (according to Mr. Castellano) or were not followed (according to Dr. Klein); The Respondent failed to check to see if students understood directions (according to Ms. Norris); Only low order questions (those dealing with facts and knowledge) were asked. No high order questions (those requiring reasoning, justification, comparison or analysis) were asked (according to Ms. Norris); The Respondent allowed group responses to questions. She did not call on one student to answer a question. This resulted in incorrect responses not being corrected (according to all those who observed the Respondent); The Respondent did not give summaries or reviews to place lessons in perspective (according to Mr. Jaxon and Dr. Klein); Lag time or dead time was allowed at the end of the classes. This resulted in students having nothing meaningful to do (according to Mr. Paugh and Ms. Norris); and The Respondent was unable to justify grades she had given to some students who complained (according to Mr. Castellano and Mr. Jaxon). The Respondent timely prepared her lesson plans. On the occasions when she did not have her lesson plans in the classroom with her they had been prepared but she did not have them with her. She had turned them in as required on Friday for approval by the principal and they had not yet been returned. The plans were not always approved by the following Monday. The Respondent had been instructed, however, that if the plans had not been approved by the following Monday, the plans were to be picked up before class anyway. The lesson plans prepared by the Respondent were "good" according to Don Price, Dean of Boys of Paxon. Mr. Price so advised Mr. Castellano. Mr. Price also advised Mr. Castellano that the Respondent was a "good teacher." During the school years in question, the Respondent did not demonstrate the ability to plan and teach a meaningful lesson. Ms. Norris attempted to assist the Respondent in demonstrating this ability. Neither Mr. Jaxon nor Ms. Norris ever saw the Respondent teach a lesson in the manner suggested by Ms. Norris. Based upon Dr. Klein's observation of the Respondent during the 1985- 86 school year, the Respondent did not materially improve her abilities from the time he observed her during the 1984-85 school year. Dr. Klein did believe that the Respondent had improved her ability to discipline a little. During the 1984-85 school year, students were taken out of the Respondent's classes to equalize class loads. Except for slightly larger classes during the first part of the 1984-85 school year, there was nothing unusual about the size or makeup of the Respondent's classes. Because students must be scheduled to take certain courses in secondary schools as opposed to one teacher having the same group of students for the entire year, school administrators have less control over the size or composition of classes. During the 1985-86 school year the Respondent taught in an "open school." A large area was divided into several classrooms creating problems with noise and other distractions. These problems were not proved to be sufficient to account for the Respondent's deficiencies as a teacher. Other teachers are able to teach effectively in these circumstances. During the 1985-86 school year the Respondent was assigned to teach marine biology for the first time. The Respondent had never had any courses in marine biology. Marine biology is, however, a subject within the Respondent's areas of certification. The evidence did not prove that the additional effort required of the Respondent in teaching marine biology was the cause of the Respondent's deficiencies. During the 1984-85 and 1985-86 school years the Petitioner provided the Respondent with detailed statements concerning her deficiencies, as required by Section 4(e)(1) of the Act. Most of the 30 exhibits offered by the Petitioner are letters or memoranda written to the Respondent in an effort to inform the Respondent of her perceived deficiencies and to offer suggestions for improvement. The Respondent responded to most of these documents in writing. By certified letter dated May 16, 1986, Herb A. Sang, the Superintendent of Duval County Public Schools, brought charges against the Respondent seeking her discharge for professional incompetency during the 1984- 85 and 1985-86 school years. The Respondent was informed of her right to a hearing pursuant to Chapter 120, Florida Statutes, as required by Section 4(e)(4) of the Tenure Act. The Respondent was given the right to a speedy and public hearing, she was informed of the nature and cause of the accusations against her, she was confronted with accusing witnesses, she was allowed to subpoena witnesses and documents and she had the assistance of counsel in compliance with Section 4(e)(5) of the Tenure Act. No definition of "professional incompetency" is provided in the Tenure Act.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent be dismissed as a tenured teacher within the Duval County public school system, effective immediately. DONE and ORDERED this 10th day of April, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3564 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." PETITIONER'S PROPOSED FINDINGS OF FACT: Proposed Finding RO Number of Acceptance or of Fact Number Reason for Rejection RO 1 and 4. RO 4. 3 RO 9-10, 31 and 42. 4 RO 45. Conclusion of law. RO 10 and 31. 7 RO 32. 8 RO 33. 9 RO 20. 10 RO 21-22. RO 24 and 28. Not supported by the weight of the evidence. Not a proposed finding of fact. 14 RO 38. 15 RO 39. 16 RO 40. 17 RO 26 and 41. 18 RO 13, 15 and 17. 19 RO 43-44. 20 RO 44. RESPONDENT'S PROPOSED FINDINGS OF FACT: 1 RO 3. 2 RO 1-2. 3 RO 4. 4 RO 5. 5 RO 6. 6 RO 7. 7 RO 9-10. 8 RO 8. 9 RO 33. 10 RO 34. 11 RO 35. 12 Hereby accepted. 13 RO 11. 14 RO 12. 15 RO 13-14. 16 RO 11 and 15. 17 RO 15. 18 RO 16 and 18. 19 RO 23. 20 RO 24. 21 Irrelevant. 22 RO 24 and 26. 23 RO 29-30. 24 RO 25 and 35. 25 RO 36. 26 RO 19. 27 Mr. Jaxon did testify that he could find deficiencies in nearly any classroom teacher. He also testified thatit would be unusual for a large numberof teachers to suddenly become incompetent. 28 RO 37. Hereby accepted. The first sentence is hereby accepted. The second sentence is rejected as not supported by the weight of the evidence. 31-33 Irrelevant or not supported by the weight of the evidence. 34 RO 41. 35 RO 27. COPIES FURNISHED: Mr. Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Gary E. Eckstine, Esquire Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Phil J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302
