The Issue Whether Respondent violated section 1012.795(1)(b), Florida Statutes (2018), as charged in the Administrative Complaint; and, if so, the penalty that should be imposed.1 1 Respondent’s alleged conduct occurred in September 2018. The 2018 version of chapter 1012, and related statutes, was in effect at the time of the alleged conduct, and, therefore, applies to this proceeding. See Orasan v. Ag. for Health Care Admin., 668 So. 2d
Findings Of Fact Background Petitioner, the Commissioner of Education, is responsible for determining whether there is probable cause to warrant disciplinary action against an educator’s certificate and, if probable cause is found, for filing and prosecuting an administrative complaint pursuant to chapter 120. Respondent holds Florida Educator’s Certificate 1124072. Respondent’s certificate is valid through June 30, 2024, and covers the areas of educational leadership, elementary education, English for speakers of other languages (ESOL), and reading. During the 2018-2019 school year, Respondent was employed as a reading teacher at Dr. Phillips High School (DPHS) in the Orange County School District (OCSD). Respondent has been a licensed educator since 1995 and admits to understanding that she is a “mandatory reporter” in instances where a child has been abused or where abuse is suspected. Section 1012.795(1)(b) authorizes the Education Practices Commission to discipline an educator “for knowingly failing to report actual or suspected child abuse as required in s. 1006.061 or report alleged misconduct by instructional personnel or school administrators which affects the health, safety, or welfare of a student as required in s. 1012.796.” Section 39.201, Florida Statutes (2018), requires any person who knows or has reasonable cause to suspect that a child is abused by a person responsible for the child’s welfare to immediately report the knowledge or suspicion to the Department of Children and Families (DCF) Abuse Hotline. Several OCSD policies also mandate that a teacher immediately report any suspected child abuse to the DCF Abuse Hotline. The Complaint The Complaint alleges that “[o]n or about September 11, 2018, A.C., an eleventh[-]grade female student, reported to Respondent that [she] was being physically abused by her mother, [and that] Respondent failed to timely report the suspected abuse to [DCF] as required by law.” As a result of this alleged conduct, the Complaint charges Respondent with having violated section 1012.795(1)(b). Evidence Adduced at the Final Hearing Respondent first met A.C. at or near the beginning of the 2018-19 school year, which commenced sometime around the latter part of August 2018. As to her initial encounter with A.C., Respondent testified as follows: Q. And when did you first meet A.C.? A. I believe she may have been absent the first few days of school, but upon her first day of entry to my classroom she asked me, when we were greeting each other at the door, do you know who I am? And I said, A.C. And she goes, well, do you know about me? And I said, no, A.C. Hi, nice to meet you. She goes, well don’t you know about my history, don’t you know anything about me? I know your son and I’m in ROTC and, well, DCF used to be here all the time in ninth and tenth grade, don’t you know anything about me? I thought you would know all about me. And I mentioned to her that I knew nothing about her except her name and her grades and welcome to my class. And I said, let me show you where you’re sitting this year. And I showed her her seat. Q. When she said, DCF used to come to school all the time, what was she talking about? A. I have no idea. I think she was telling me about her personal history. Her behavior was a little flamboyant and very attention seeking and it was very extroverted, wanting to get to know me on a personal basis. And I -- it was just a little different from what I’m used to. And but she definitely did stand out in my vision as somebody that was seeking attention. (Tr. pp. 103-104). Within seconds of meeting A.C., Respondent, by her own admission, thought of A.C. as an extreme extrovert who was prone to engage in flamboyant and attention-seeking behavior. On the morning of September 6, 2018, Ms. Shuster included Respondent on an email that was sent to several individuals regarding A.C. The email informed recipients of the need to schedule “a team meeting … in reference to [A.C.’s] sporadic attendance.” Respondent, in response to the email from Ms. Shuster, stated the following with respect to A.C.: She is extremely bright and multi-lingual. She mentioned the school had to call DCF (A4) on her several times last year because her mom is really mean. The last few absences she had ROTC commitments. I would check with them to verify. 8/24 was the ROTC field day, 9/5 was the Club Fair. She probably shouldn’t be in reading; however, she fell asleep on the FSA last year. The question may be why isn’t she getting enough sleep? I hope this helps. Although A.C. had only briefly mentioned to Respondent during their initial interaction that she had encounters with DCF during the previous school year, it is obvious that A.C.’s reference to DCF resonated with Respondent given that several days later Respondent thought the information was of such significance that it needed to be included in Respondent’s reply to the email from Ms. Shuster. As of September 6, 2018, Respondent knew that A.C.’s school attendance was sporadic; that something in A.C.’s life was causing her to not get enough sleep; and that A.C. reported having a “really mean mom” whose purported conducted resulted in several visits from DCF during the previous school year. September 11, 2018 According to Respondent, prior to the commencement of her fifth period class on September 11, 2018, she was greeting students at the doorway of her classroom when A.C. arrived. Because A.C. had recently been absent from Respondent’s class, Respondent asked A.C. “where you been.” In response to her question, A.C., according to Respondent, stated that she “got arrested and I can tell you all about it.” Respondent testified that she then told A.C. to go to her seat and “we can talk about that later.” Respondent testified that she then instructed A.C. to sit down, but A.C. continued talking and said to Respondent “I can show you pictures.” Respondent then instructed A.C. to “put [her] phone away and sit down.” A.C. complied with Respondent’s directive, but before doing so persisted in trying to show Respondent the pictures on her phone. Respondent said that she was about 20 feet from A.C. when A.C. attempted to show her the pictures. Because of the distance between her and A.C., Respondent testified that she was unable to discern what was reflected in the pictures, but she recalled that A.C. said “I can show you pictures, I can show you, you know, these bite marks.” (Pet. Ex. 18, pp. 22-23). Respondent testified that at the conclusion of the fifth period class, she told A.C. to remain in the classroom. According to Respondent, as reflected in Petitioner’s Exhibit 18, pages 18 and 19, the following events then transpired over a period of about 10 to 15 minutes: Q. Okay. So now you and A.C. are in the room. A. Yes. Q. And you say to A.C. or she says to you, what? A. I said, hey, A.C., you said you were arrested. Can you tell me about that? What’s going on? She goes, well, if you really want to know, I wanted to get it on with my boyfriend and so my mom didn’t like it, we got into it and I called the police on her and they arrested me. And I said, oh wow, A.C. I was like, why did they take you. And she goes, well, the cops said that they were calling DCF and that they found me -- that I was the one not listening to my mom. And I said, well, A.C., I can tell you this. I have a teenage daughter. She graduated from here a few years ago and, I said, I’m going to talk to you as a teacher and I’m going to talk to you as a mom. I said, as a mom, maybe try to put your foot in the other shoe. Maybe your mom doesn’t want a little A.C. running around in nine months. Did you ever think about that perspective? And she goes, no. She goes, oh I don’t want to have kids. She goes -- I said, well, are you planning on going to the military and she said no, I don’t want to do that either. And she goes, I want to do something in art, graphic arts. Create -- I’m very creative. And I said okay. Then we spoke about, you know, what else did we speak about? We spoke about, you know, trying to follow house rules so that she doesn’t get in this situation again, whatever. And she goes, yeah, yeah, I know. She goes, I’m over it. And I said, well, you know, lunch is about to end, you better hurry on. And so, then she left for lunch and then when she left I called Ms. Graves and I called Ms. Shuster. I did not get Ms. Shuster. I didn’t leave a message. Ms. Graves, I left a message. Ms. Graves called me back sixth period and when I told her, hey, A.C. reported that she got arrested, what’s going on, she goes, oh, every teacher has told me already. We know. And I said, okay, great, thanks. In addition to the above, Respondent testified that the following events also occurred during her 10 to 15-minute discussion with A.C: Q. During that period, did A.C. show you any photos? A. I don’t recall having any photo opportunities except the time that she -- when she was walking into the room trying to show me the phone from across the room. Q. Okay. So, while she is having the conversation with you during the lunch period, she didn’t try to show you the photos that she had previously tried to show you; is that correct? A. I don’t believe so. I remember I asked her about the photos and stuff like that. She goes, I can show you photos and I was like, no, I don’t want to see your photos. Because I just didn’t. A.C. testified that on September 11, 2018, she reported to Respondent’s class and informed Respondent that she had been abused by her mother. According to A.C., she showed Respondent several pictures of bruising and bite marks on her body, which A.C. attributed to having resulted from the conduct of her mother. A.C. testified that the images reflected in Petitioner’s Exhibit 4 are copies of the pictures that she showed Respondent on September 11, 2018. Bates stamped page 9 of Petitioner’s Exhibit 4 is an image that clearly shows bite marks on A.C.’s hand. A.C. testified that the bite marks reflected in this exhibit were still visible on her hand when she met with Respondent on September 11, 2018, and that she showed her injured hand to Respondent. A.C. could not recall if she showed the pictures to Respondent upon entering Respondent’s classroom or immediately following Respondent’s fifth period class. While A.C. was uncertain as to when she discussed the details of her situation with Respondent, her testimony regarding her interaction with Respondent on September 11, 2018, was without equivocation or hesitancy, she recounted the events in question with precision, and her testimony was not otherwise impeached by Respondent. A.C. was a credible witness, and her testimony is appropriately credited. September 13, 2018 Thursday, September 13, 2018, was open-house day at DPHS, and teachers were required to remain at school until 8:00 p.m. At approximately 4:30 p.m., Respondent and her colleague, Ms. Rosa Martinez-Rodriguez, were conversing in Ms. Martinez-Rodriguez’s classroom when the administrative dean, Ms. Tamie Shuster, appeared in the doorway of the classroom. According to Ms. Shuster, she needed to speak with Ms. Martinez-Rodriguez about ESOL-related matters. Ms. Shuster finished her conversation with Ms. Martinez-Rodriguez, and before exiting the classroom, she was hailed by Respondent who informed her that student A.C. reported to Respondent that she had been bitten by her mom, and that A.C. had shown her cellphone pictures of the bite marks. When asked by Ms. Shuster if she had told anyone else about A.C.’s complaint, Respondent indicated that she had not. Ms. Shuster informed Respondent that the incident involving A.C. had to be reported, and after meeting with Respondent, Ms. Shuster promptly reported the incident involving A.C. to the DCF Abuse Hotline. In the narrative section of the reporting form completed by Ms. Shuster on September 13, 2018, she noted the following: “The student [A.C.] reported to her teacher Ms. Camacho Szeto that her mother got mad at her [and] left bite marks on her.” As a follow up, Ms. Shuster, on September 14, 2018, prepared a written statement outlining the events of the previous day. In all material respects, Ms. Shuster’s written statement on September 14, 2018, is consistent with her testimony and the information that she included in the narrative section of the abuse reporting form that she prepared on September 13, 2018. Ms. Martinez-Rodriguez was in earshot of the conversation between Respondent and Ms. Shuster and testified to the following: Q. Okay. And then what did you hear during that conversation between Ms. Szeto and Ms. Shuster? A. So they were talking about, as I said, a student that they both seemed to know about. The student seemed to have a lot of absences. And I heard Ms. Szeto tell Ms. Shuster that the student had said that her parent bit her and had shown her some pictures on the phone, but that she hadn’t reported anything because she had not observed bite marks on the student in person, on her person. And she wasn’t sure, also, if it was true as -- because there was a question about whether the pictures were of the student. To my understanding. Q. Okay. So, it’s your testimony that Mrs. Szeto told Ms. Shuster that she didn’t report it to DCF because she wasn’t sure if the student was telling the truth; is that correct? A. I’m not sure who she was referring to as not reporting it. I’m not sure if it was DCF or administration. That was unclear to me. But, yes, it was clear that she said that she wasn’t sure if it was true. Q. Ms. Camacho saying she wasn’t sure if it was true. If what was true? A. What the student was alleging that her parent had bit her and that the marks were actually the student’s. (Tr. pp. 60-61) Ms. Martinez-Rodriguez, approximately two weeks after witnessing the conversation between Respondent and Ms. Shuster, prepared a “witness statement,” which reads as follows: On September 13, 2018, Ms. Camacho-Szeto visited my office. She remained here for about an hour. It was Open House day, so we had to be in school until 8 p.m. We were having a conversation about personal matters. At some point during the visit, Ms. Tamie Shuster stopped by the door. Ms. Camacho-Szeto informed her that one of her students was stating that her mom bit her and the student had shown her pictures of the bite marks on her phone. I do not recall the name of the student, nor if it was an ESOL student. Ms. Camacho-Szeto stated that she had not reported anything because she wasn’t sure if the student was saying the truth as she never saw the bite marks on the student, only pictures on her phone and she didn’t know if they were really pictures of her. Ms. Tamie Shuster said she would investigate and left. Ms. Camacho-Szeto left to get her meal before Open House began. Respondent, when recalling her conversation with Ms. Shuster on September 13, 2018, testified as follows: Q. What did you say to Ms. Shuster? A. I said, hey, Ms. Shuster, last week you sent an email about A.C. and regarding the attendance child -- that you were spearing up the Child Study Team and I needed to talk to you. I called you the other day, but you weren’t at your desk. I said, I have this girl, A.C., she’s a little bit, you know, she’s a handful, I said, but I need to tell you, she told me she was arrested and she said these things. She’s trying to show me a phone from across the room and she mentioned some bite marks. I see no evidence of bite marks. I see nothing but the behaviors that’s exhibited tell me this child needs some type of counseling or whatever… . She goes, oh, gee, thanks. Now I have to call it in. And I said, well, I don’t know, Tamie, I’m not -- I don’t see any signs of abuse here whatsoever, she just said she was arrested, but I don’t have her history. You have her history, you’re starting the Child Study Team. I said, if I call in a report to DCF, I have nothing to show except that she was arrested and they’re not going to take the report … . * * * Q. Okay. Now you said you mentioned to Ms. Shuster that A.C. said something about bite marks. A. Yes. Q. But what did you tell Ms. Shuster about what A.C. said about bite marks? A. I said, she was trying to show me a cellphone from across the room of a -- looked like an x-ray with bite mark -- not bite marks, sorry. Teeth -- like x-ray teeth. And I said, and I see no evidence here of any bite marks or anything on this child. But I was just trying to calm her down and to start my class and I’ve not spoken to her about it anymore. And I said, could you follow up with her? (Pet. Ex. 18, pp. 38-41). Ms. Shuster and Ms. Martinez-Rodriguez both testified that Respondent, when speaking with Ms. Shuster on September 11, 2018, stated that A.C. had been bitten by her mother and had shown Respondent pictures of the bite marks. Neither Ms. Shuster nor Ms. Martinez-Rodriguez testified, nor did they note in their written statements, that Respondent stated that A.C. was “trying to show Respondent pictures from across the room.” Furthermore, neither Ms. Shuster nor Ms. Martinez-Rodriguez testified that Respondent mentioned “x-ray like pictures of teeth” when discussing A.C. with Ms. Shuster. In addition to the above, Respondent’s purported statement to Ms. Shuster that she had “not spoken to her (A.C.) about it anymore,” when read in context, is in direct conflict with other testimony where Respondent states that she met with A.C. for 10 to 15 minutes after class to discuss with A.C. the situation involving A.C. and her mother. It is not entirely clear from the evidence why Respondent would not disclose to Ms. Shuster that she had met with A.C. for 10 to 15 minutes, and thus mislead Ms. Shuster about the extent of her interaction with A.C. on September 11, 2018. Also, Respondent’s testimony that she did not have an opportunity to review the pictures on A.C.’s phone during her after-class meeting with A.C. is problematic, and not worthy of belief. While it may have been reasonable under the circumstances for Respondent to forestall A.C.’s attempts to show Respondent the pictures at the beginning of the class period, it defies logic and reason that Respondent would meet with A.C. for 10 to 15 minutes after class, ask A.C. about the pictures, and then refuse to view them when given the opportunity to do so. Respondent’s evasive, misleading, and inconsistent testimony undermines her credibility to the point to where her version of the events in question cannot be believed. Dr. Knight is the principal at DPHS and testified that it is not required that an employee have actual knowledge that a child has been abused. According to Dr. Knight, employees are trained that, when dealing with issues of suspected child abuse or neglect, “it’s not your job to determine if you think it’s factual or not. You call it in and then DCF is the organization that determines whether it’s factual or not. Your job is to just report it and they take it from there.” Dr. Knight’s testimony accurately states Respondent’s obligation as a “mandatory reporter.” Findings of Ultimate Fact On September 11, 2018, A.C., who was then an eleventh-grade student, reported to Respondent that she had been physically abused by her mother. A.C., when discussing the events with Respondent, presented pictures of her injuries and also showed Respondent bite marks that were then present on A.C.’s hand. The fact that A.C. verbally informed Respondent that she was abused by her mother was, in itself, sufficient to trigger Respondent’s reporting obligation to DCF. The fact that A.C. showed Respondent pictures of injuries to her body was, in itself, sufficient to trigger Respondent’s reporting obligation to DCF. Although Respondent understood her obligation to report known or suspected child abuse to DCF, she failed to do so with respect to A.C.’s allegations of abuse. Based on the foregoing, it is determined that Petitioner proved, by clear and convincing evidence, that Respondent engaged in the conduct alleged in the Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order that: 1) suspends Respondent’s educator’s certificate for a period of two days; 2) places her educator’s certificate on probation for a period of two years from the date of the final order, with conditions determined by the Education Practices Commission; 3) requires Respondent, during her period of probation, to attend and successfully complete, at her expense, training related to her reporting obligations under section 1012.795(1)(b); and, 4) pay a fine in the amount of $480.00. DONE AND ENTERED this 15th day of July, 2021, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2021. COPIES FURNISHED: Carol R. Buxton, Esquire Florida Education Association Suite 109 1516 East Hillcrest Street Orlando, Florida 32803 Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 Lisa M. Forbess, Interim Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material hereto, Respondent held Florida Teaching Certificate No. 390436, Provisional Graduate, Rank III, valid through June 30, 1981, covering the areas of Sociology, English, History and Social Studies. On or about October 19, 1978, Respondent while acting within the scope of his employment as a teacher at Robert E. Lee Junior High School in Dade County, Florida, was observed to seize a student, Rodney Canull, by his hair and right arm, lift the student off the ground, and throw the student repeatedly onto a concrete ramp. As soon as the student was able to extricate himself from Respondent, he fled the scene of the altercation. However, later the same day, Respondent was again observed in a confrontation with this same student, in which Respondent had twisted the student's arm behind his back, and the student was doubled over in pain with his head below his knees. On or about April 24, 1978, Respondent was involved in a physical confrontation with another student, Carla Brinson, at Robert E. Lee Junior High School. The confrontation between Ms. Brinson and Respondent occurred in the course of Respondent's attempt to discipline the student. When Respondent requested that the student turn around so that he could administer corporal punishment, she refused. Upon the student's refusal, the Respondent threw her to the floor. The student got up from the floor, and struck Respondent with her fist, whereupon Respondent struck the student in the face with his fist. The student then ran out the front door of the classroom in which the confrontation had occurred, and was pursued by Respondent, who began to strike the student with his belt. Both Respondent and the student ended up on the ground in front of the portable classroom where Respondent again struck the student in the forehead with the heel of his open hand. When another teacher attempted to intervene in the confrontation, he was pushed aside and Respondent continued to strike the student with his belt. On or about May 11, 1977, Respondent was involved in a physical confrontation with a student at Madison Junior High School in Dade County, Florida, named Wesley G. Frater. In the course of Respondent inquiring as to whether the student belonged in a particular room, the student referred to Respondent as "man", whereupon Respondent began shoving the student into a row of standing metal lockers, approximately 25 in number, and then lifted the student upside down from the ground and dropped him onto a concrete floor. On or about May 20, 1977, Respondent was involved in a physical confrontation at Madison Junior High School with a student named Vincent Johnson. Some dispute of an undetermined nature occurred between the student and the Respondent, after which the student attempted to flee from Respondent. Respondent chased the student down in the school parking lot, and threw the student against a parked truck. Respondent then threw the student to the ground, picked him up and attempted to transport him to the principal's office. Once in the corridor of the school building, Respondent picked the student up and repeatedly threw him to the floor. Other teachers at the school, after hearing a disturbance in the hallway, intervened to separate Respondent and the student. As previously indicated in this Recommended Order, Respondent neither appeared in person nor offered any evidence for inclusion in the record in this proceeding through his counsel. As a result, the record in this proceeding contains no explanation or justification for Respondent's conduct. However, it is clear from the record that Respondent's conduct, as outlined above, worked to create an atmosphere of fear among his students, thereby seriously reducing his effectiveness as a teacher.
The Issue Whether the Respondent committed the violations alleged in the letter from the Petitioner dated August 22, 2002, and in the Notice of Specific Charges filed October 12, 2002, and, if so, whether dismissal from employment is the appropriate penalty.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The School Board is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Article IX, Florida Constitution; Section 230.03, Florida Statutes (2002). At the times material to this proceeding, Mr. Starr was employed by the School Board as a social studies teacher at Lake Stevens. After receiving a degree in political science from Loyola University, Mr. Starr enrolled in the social studies education program at Florida International University. Mr. Starr completed this program in the summer of 1998 and applied for a teaching position with the Miami-Dade County public school system. He was hired as a substitute teacher and placed in a substitute teacher pool so that he worked at various schools, and he also taught in the Adult Education Program at North Miami Senior High School. Dr. Alvin Brennan became the principal of Lake Stevens in January 2000. In or around November 2000, he hired Mr. Starr to teach social studies at Lake Stevens. At the times material to this proceeding, Arnold Montgomery was the assistant principal at Lake Stevens who, among other duties, supervised the social studies program, observed teachers' classroom performance, and acted as a resource person regarding curriculum, instructional, and academic issues at the school. In a Teacher Assessment and Development System Post- Observation Report dated January 18, 2001, Dina Carretta, an assistant principal at Lake Stevens, rated Mr. Starr acceptable in all six categories of the Teacher Assessment and Development System evaluation instrument. Mr. Starr's failure to keep a standard grade book. In early November 2001, Dr. Brennan learned that the State Department of Education intended to include Lake Stevens in a Full-Time Equivalency audit. The grade books of the teachers at Lake Stevens were to be reviewed as part of the audit to ensure that Lake Stevens accurately reported its full- time equivalents to the district so that the State could ultimately determine the accuracy of the number of full-time equivalents reported by the various school districts to the State. On or about November 2, 2001, Dr. Brennan instructed all of the teachers at the school to turn over their grade books to him for review so that he could prepare for the audit. It is one of the responsibilities of a teacher to maintain a grade book that contains the attendance record and grades for each student in his or her classes. Mr. Starr did not submit a grade book to Dr. Brennan in response to this instruction, and Dr. Brennan called Mr. Starr to his office and directed him to turn over his grade book. Mr. Starr told Dr. Brennan that he was experimenting with a computerized grade book and that only he could understand it.2 Dr. Brennan explained to Mr. Starr that each teacher is required to keep complete and accurate grade books because funding is dependent on the number of students attending a school and because grade books are official documents that must be produced to parents who ask about their children's grades and attendance. Mr. Starr still did not provide his grade book to Dr. Brennan as instructed. During roughly this same timeframe, Mr. Montgomery began preparations for an observation of Mr. Starr's classroom performance in accordance with the Professional Assessment and Comprehensive Evaluation System ("PACES"), which is a tool for evaluating teachers that came into use in the Miami-Dade County public school system in or about 1999. Mr. Montgomery intended to conduct an observation of Mr. Starr's classroom in late November 2001, and, in accordance with procedure, Mr. Montgomery scheduled a pre-observation conference with Mr. Starr for November 19, 2001. In the notice of the pre-observation conference, Mr. Montgomery asked Mr. Starr to bring his grade book, lesson plans, and three student folders to the conference. Mr. Starr did not attend the pre-observation conference and did not provide the materials that Mr. Montgomery had requested. Mr. Montgomery followed up with Mr. Starr and asked him again to provide the requested documents; Mr. Starr responded that he would provide the documents, including the grade book, at a later time. Mr. Starr did not provide his grade book to Mr. Montgomery prior to or at the November 26, 2001, observation. Dr. Brennan held a Conference-for-the-Record with Mr. Starr on December 7, 2001, to discuss Mr. Starr's failure to comply with Dr. Brennan's directive to provide him with a proper grade book; Ms. Carretta was also in attendance. It is noted in the Summary of the Conference-for-the-Record, dated December 13, 2001, that Mr. Starr was asked whether the United Teachers of Dade represented him, and he responded that he was not a member of the union. In the Summary of the Conference-for-the-Record, Dr. Brennan recorded that the purpose of the conference was to discuss Mr. Starr's non-compliance with School Board Rule 6Gx13- 4-1.21 and with administrative directives requiring that he properly maintain a grade book. Dr. Brennan explained to Mr. Starr during the conference the importance of maintaining a grade book to record daily attendance and grades for his students and advised him that one of his responsibilities as a teacher was to maintain a proper grade book. At the December 7, 2001, Conference-for-the-Record, Dr. Brennan advised Mr. Starr that, although there were authorized computer grade book programs, the program with which Mr. Starr was experimenting was not authorized. Dr. Brennan directed Mr. Starr not to use any computerized or computer- assisted grade books without first obtaining Dr. Brennan's approval and instructed him to ask Arnold Montgomery, an assistant principal at Lake Stevens, to help him set up and maintain a standard grade book. Mr. Starr did not believe that he was required to get Dr. Brennan's approval for the use of a computer grade book "right off the bat."3 In his view, the rules provided that Dr. Brennan had the authority to demand that he not use a computer grade book but that the School Board allowed computer grade books in general. Mr. Starr continued to use his computerized "grade book," and he did not provide a grade book to Dr. Brennan or to Mr. Montgomery during the 2001-2002 school year, despite being instructed to do so on numerous occasions.4 At some point, Mr. Starr provided Dr. Brennan with sheets of paper that Mr. Starr identified as his computerized grade book, but Dr. Brennan was unable to understand the documents that Mr. Starr presented to him. Mr. Starr's failure to adhere to Lake Stevens' discipline plan. Currently, and at the times pertinent to this proceeding, Lake Stevens has in place a discipline plan developed by the school's Discipline Committee pursuant to which teachers are required to go through five steps before taking the sixth step of requesting administrative action with respect to students who presented discipline problems. This six-step discipline plan has the approval of the teachers and administrators at Lake Stevens. Pursuant to the plan, the teachers at Lake Stevens are grouped into teams of six teachers, who work in collaboration in carrying out each step of the six-step discipline plan. It is Dr. Brennan's responsibility to ensure that the six-step discipline plan is implemented. The main elements of the six-step discipline plan are as follows: When a student misbehaves in a teacher's classroom, the teacher first initiates a discussion about the student at the daily team meeting to determine whether any other teachers on the team have a problem with that student. If necessary, the team moves to the second step, which requires that the team conduct a conference with the parent(s) of the student. If the problem still is not resolved, the third step is initiated and the student is required to confer with a school counselor. The fourth step in the six-step plan requires that the student meet with both the school counselor and the team. The fifth step is a parent/student conference with the school counselor and the team. If the problem has not been resolved after these five steps have been completed, the team then moves to the sixth step and the teacher is permitted to complete a referral sending the student to a school administrator for intervention.5 The referral must be routed through the team leader. Once the team leader approves a referral, the team leader meets with the administrator for the particular grade-level, and they decide the appropriate punishment for the student. If a teacher refers a student for administrative action before the first five steps in the plan are completed, the team leader sends the referral back to the teacher with instructions to follow the appropriate procedure. According to Mr. Starr, there was chaos in his classroom by December 2001. Prior to this time, he had spoken with Dr. Brennan about the problems he was having maintaining discipline, and Dr. Brennan told him he needed to learn to handle the problems himself. Dr. Brennan insisted that Mr. Starr strictly adhere to the six-step discipline plan, and Dr. Brennan refused to provide direct assistance to Mr. Starr even though Mr. Starr repeatedly requested his assistance. In Dr. Brennan's view, it is the teacher's responsibility to manage the learning environment, and it is not the responsibility of the principal to help the teachers maintain discipline in their classrooms. To this end, Dr. Brennan encouraged Mr. Starr to work with the team of teachers on his grade level on a daily basis for assistance in managing his classroom. In addition, Dr. Brennan directed Mr. Starr to discuss techniques for classroom management with the members of a Professional Growth Team that was appointed in December 2001 to assist Mr. Starr and with Mr. Montgomery, who was available to assist Mr. Starr. Mr. Starr resisted all efforts to assist him in managing his classroom. Mr. Starr absolutely refused to adhere to the six-step discipline plan during the entire 2001-2002 school year and repeatedly prepared referrals and sent students to the administrative offices without having completed even the first step of the six-step plan. Mr. Starr did not attend team meetings and isolated himself from the team. Because of his refusal to work with his team, it was very difficult for anyone to help Mr. Starr deal with students that he considered disruptive and defiant. Mr. Starr refused to adhere to the six-step discipline plan because he disagrees with the philosophy of the plan; he believes that misbehavior must be addressed with immediate consequences and that, because it took days to complete the five steps required before a referral could be made, the plan reinforced his students' perceptions that there were no consequences to defiance and disruption in his classroom.6 Mr. Montgomery had numerous conferences with Mr. Starr about his failure to follow the six-step discipline plan, specifically about his not following the first five steps in the plan, but, rather, going directly to the sixth step and referring misbehaving students to Dr. Brennan's office. Mr. Starr told Mr. Montgomery periodically throughout the 2001- 2002 school year that the six-step discipline plan did not work for him and that he was not going to follow the plan. Mr. Starr described the conditions in his classroom in a memorandum to Dr. Brennan dated March 5, 2002: The situation in my classroom has become dangerous and untenable due to rampant student defiance. Students no longer obey what the instructor directs them to do, and they are no longer in compliance with any class rules. Lesson objectives are not being met due to the chaos, and there is a potential that student[s] may be injured. Mr. Starr referred in his memorandum to a number of "management referrals" that he contended had not been processed by the administration, and he attributed the chaos in his classroom to "administrative neglect." Mr. Starr concludes his memorandum by stating: "The weakness in my management is due to lack of administrative support because of inadequate follow-up." Mr. Starr sent copies of this memorandum to the district office, the regional superintendent and the district superintendent of schools.7 Dr. Brennan responded to Mr. Starr's memorandum by discussing the situation in Mr. Starr's classroom with the administrator handling discipline matters for the sixth grade;8 during the discussion, Dr. Brennan "question[ed] the validity of the statements that Mr. Starr was making in his letter."9 Dr. Brennan then referred Mr. Starr to the leader of his team and to the grade-level administrator for the sixth grade for a review of the six-step discipline plan. Dr. Brennan also instructed Mr. Starr to work with his team on discipline problems. Dr. Brennan found it very difficult to assist Mr. Starr, however, because, in Dr. Brennan's view, Mr. Starr resisted all of the administration's efforts to help him with the discipline problems in his classroom and refused to implement the six-step discipline plan. In addition, many of the students identified by Mr. Starr as discipline problems were not causing problems for any of the other teachers on Mr. Starr's team. Mr. Starr's refusal to complete prescriptive activities. Mr. Starr was in his second year of an annual contract during the 2001-2002 school year and was, therefore, considered a new teacher subject to two formal PACES observations each year. Whenever a PACES observation is scheduled, the teacher is notified at least a week in advance, and a pre-observation conference is scheduled. The teacher is told to bring to the pre-observation conference his or her grade book, lesson plans, and other materials for review so that everything will be in order at the time of the observation, and the teacher and the administrator who is to conduct the observation discuss the observation procedures. Currently, and at the times material to this proceeding, new teachers at Lake Stevens are given a "free" observation, if necessary, in addition to the two required formal observations. The purpose of the free observation is to allow the administrator observing the teacher to identify the teacher's deficiencies, to discuss the deficiencies with the teacher, and to provide the teacher with assistance to remedy the deficiencies prior to the formal observation. A teacher who has deficiencies in the first observation is given a week or more to work on correcting any deficiencies before an official observation is conducted. Mr. Montgomery scheduled a PACES observation of Mr. Starr's classroom performance for November 26, 2001. In preparation for this observation, Mr. Montgomery scheduled a pre-observation conference for November 19, 2002, and he directed Mr. Starr to bring with him to the meeting his grade book, his lesson plans, and three student folders. As noted above in paragraph 10, Mr. Starr did not attend the conference, and he did not produce any of the materials requested by Mr. Montgomery. Mr. Montgomery, therefore, did not have an opportunity to review these items prior to the observation. Mr. Montgomery determined during the PACES observation on November 26, 2001, that Mr. Starr's classroom performance was deficient in a number of the components of the PACES evaluation instrument. Mr. Montgomery attributed these deficiencies in large part to Mr. Starr's failure to have a lesson plan prepared for his classes and to his inability to manage his classroom. Had Mr. Starr's classroom performance been acceptable during the November 26, 2001, observation, that observation would have been considered his formal PACES observation. Mr. Starr's classroom performance had serious deficiencies, however, and the November 26, 2001, observation was treated as a "free" observation. Mr. Montgomery met with Mr. Starr after the November 26, 2001, observation, discussed the deficiencies in his classroom performance, and instructed him to provide the grade book, lesson plans, and student folders that Mr. Montgomery had previously requested before the formal PACES observation of his classroom performance. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on December 3, 2001, after having given Mr. Starr one week's notice. Mr. Starr again failed to provide his grade book, lesson plans, or student folders, and Mr. Montgomery found his classroom performance deficient in five out of the seven PACES domains: Mr. Montgomery found that Mr. Starr was deficient in planning for teaching and learning; managing the learning environment; enabling thinking; classroom-based assessment of learning; and professional responsibility.10 On or about December 13, 2001, Mr. Montgomery and Dr. Brennan conferred with Mr. Starr to discuss his December 3, 2001, observation. Mr. Starr was provided with a copy of the observation and was told to work with a Professional Growth Team for assistance in correcting the deficiencies in his classroom performance. He was also directed to work with a buddy, a peer, and a master teacher to learn how to set up a grade book and to learn what must be included in a lesson plan. A Professional Growth Team consists of two teachers, one selected by the teacher and one selected by Dr. Brennan. Mr. Starr selected Ms. Davis and Dr. Brennan selected Ms. Scriven-Husband as members of the Professional Growth Team.11 Dr. Brennan gave Ms. Davis and Ms. Scriven-Husband a general outline of Mr. Starr's deficiencies and advised them of the areas in which they were to work with Mr. Starr. The work of the Professional Growth Team was done under the supervision of Dr. Brennan, and he was advised that Mr. Starr was not completing the tasks given him by the Professional Growth Team. One of the items Mr. Starr was to produce for the Professional Growth Team was a long-range plan. Dr. Brennan wanted Mr. Starr to produce a long-range plan so the Professional Growth Team could determine whether he knew how to plan a lesson. Dr. Brennan was advised that Mr. Starr did not provide such a plan to the Professional Growth Team. When Dr. Brennan questioned Mr. Starr about the plan, Mr. Starr replied that he intended to prepare it over the Christmas holidays. Dr. Brennan told him to provide the plan by the end of the day; Mr. Starr did not do so. Mr. Montgomery scheduled an informal observation of Mr. Starr's classroom performance on or about February 8, 2002. Mr. Montgomery had spoken periodically with members of Mr. Starr's Professional Growth Team between the December 3, 2001, and February 8, 2002, observations and had been advised that Mr. Starr had not provided the Professional Growth Team with his grade book, lesson plans, or student folders and that Mr. Starr had not sought the team's assistance in correcting the deficiencies identified in the December 3, 2001, observation. Mr. Montgomery again instructed Mr. Starr to provide his grade book, lesson plans, and student folders prior to the February 2002 observation. In response to this instruction, Mr. Starr advised Mr. Montgomery that he used an electronic grade book and that his lesson plans were on his Palm Pilot because he felt that he had more flexibility using these tools than trying to work with written documents. Mr. Montgomery told Mr. Starr to provide hard copies of the lesson plans and the grade book, as required by the Miami-Dade County public school system procedures; Mr. Starr did not provide the requested documents to Mr. Montgomery. Mr. Montgomery observed numerous deficiencies in Mr. Starr's classroom performance during the February 8, 2002, observation, and Mr. Montgomery discussed the results of the observation with Dr. Brennan. Mr. Montgomery conducted a formal observation of Mr. Starr's classroom performance on March 1, 2002. Again, Mr. Montgomery noted a number of deficiencies in Mr. Starr's classroom performance, specifically in seven components of Domain I, Planning for Teaching and Learning; eight components of Domain II, Managing the Learning Environment; two components of Domain V, Enabling Thinking; and one component of Domain VI, Classroom-Based Assessment of Learning. Dr. Brennan discussed the results of the March 1, 2002, observation with Carnel White, the Region Superintendent for Lake Stevens, who instructed Dr. Brennan to proceed to develop a Professional Improvement Plan.12 Dr. Brennan was, by this time, certain that Mr. Starr was not going to correct the deficiencies in his classroom performance, since the deficiencies noted in the March 1, 2002, observation were the same deficiencies noted in previous observations. Mr. Starr met with Dr. Brennan and Mr. Montgomery in a Conference-for-the-Record on March 15, 2002, to discuss the results of the March 1, 2002, observation.13 An extensive Professional Improvement Plan was developed for Mr. Starr during the Conference-for-the-Record: Mr. Starr was required to complete course work for Domains I, II, V, and VI; he was required to discuss with the Professional Growth Team 17 assigned readings and to submit written summaries of these readings to Dr. Brennan for his approval; and he was required to discuss with Dr. Brennan and identify for him techniques and strategies for 14 components in which he was deficient, to apply the new techniques and strategies, and to maintain and submit to Dr. Brennan logs charting the successes and failures in his application of these new classroom techniques and strategies. All of the courses and plan activities in the Professional Improvement Plan were to be completed by April 9, 2002.14 Mr. Starr was advised at the March 15, 2002, Conference-for-the-Record that he should speak to Mr. Montgomery if he had any concerns about the Professional Improvement Plan. Mr. Starr did not complete the plan activities set forth in the Professional Improvement Plan by the April 9, 2002, deadline. On April 9, 2002, Dr. Brennan called Mr. Starr to the office to ask him to submit the written plan activities required by the Professional Improvement Plan; although Mr. Starr presented himself at the main office, he refused to go into Dr. Brennan's office to meet with him. According to Dr. Brennan, Mr. Starr also advised him at this time that he did not intend to comply with any further administrative directives. On April 10, 2001, after conferring with Dr. Brennan, Mr. White placed Mr. Starr in an alternate work assignment at his residence, pending a district-level Conference-for-the- Record requested by Mr. White. The district-level Conference- for-the-Record was held at the Office of Professional Responsibilities on April 12, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan; his insubordination; his violation of Rule 6B-1.001, Florida Administrative Code; and his future employment status with the School Board. The April 12, 2002, Conference-for-the-Record was conducted by Barbara Moss, District Director of the Office of Professional Standards, and Ms. Moss prepared a Summary of the Conference-for-the-Record dated May 3, 2002. In the summary, Ms. Moss noted that, prior to the conference, Mr. Starr asked to bring an attorney to the Conference-for-the-Record and to tape the proceedings and that he was told that attorneys and tape recordings were not permitted. Ms. Moss also noted that Mr. Starr accused Dr. Brennan of harassing him and that she discussed with Mr. Starr the procedure for reporting harassment and gave him an Equal Employment Opportunity packet. Ms. Moss further noted that Mr. Starr stated that he wanted to file a grievance against Dr. Brennan and that she explained the procedure for filing a grievance and gave him a copy of the Contract between the Miami-Dade County Public Schools and the United Teachers of Dade, which contained the formal union grievance procedure. Mr. Starr was not, however, a union member and did not have access to this procedure. Mr. Starr's failure to comply with the plan activities specified in the Professional Improvement Plan dated March 15, 2002, was discussed at the April 12, 2002, Conference-for-the- Record. It is reported in the summary that Mr. Starr stated that he believed the evaluation process was designed to make him fail and that there was a conspiracy against him. According to the Summary of the Conference-for-the- Record, Mr. Starr confirmed during the conference that he had told Dr. Brennan that he wouldn’t comply with Dr. Brennan's directives, explaining that he defied Dr. Brennan because Mr. Starr perceived that Dr. Brennan was abusive and belligerent in his dealings with him. The summary also reflects that Mr. Starr's failure to provide Dr. Brennan with a student grade book and with attendance records was specifically discussed at the Conference-for-the-Record. The summary of the April 12, 2002, Conference-for-the- Record reflects that Mr. Starr was issued the following directives: He was directed to comply with all administrative directives; to complete all Professional Improvement Plan activities and to submit them to Dr. Brennan by the end of the workday on April 15, 2002; to maintain a grade book, a record of students' attendance, and lesson plans; and to implement Lake Stevens' discipline plan to effect classroom management. Mr. Starr was also told to submit to Dr. Brennan by April 15, 2002, an updated grade book and student attendance records. Finally, Mr. Starr was advised that he could return to Lake Stevens and resume his teaching duties on April 15, 2002. Mr. Starr indicated at the conclusion of the April 12, 2002, Conference-for-the-Record that he would comply with the directives. Finally, Mr. Starr requested at the April 12, 2002, district-level Conference-for-the-Record that Mr. White order Dr. Brennan to relieve him of the sixth period class, stating, according to the summary, that he was not capable of teaching six periods. Mr. White instructed Dr. Brennan to assign the sixth period to another teacher, which Dr. Brennan did.15 When Dr. Brennan did not receive Mr. Starr's completed Professional Improvement Plan activities by April 15, 2002, he extended the deadline to April 16, 2002. Mr. Starr did not provide the materials on April 16, 2002, and Dr. Brennan summoned Mr. Starr to his office.16 According to Dr. Brennan, Mr. Starr was disruptive when he arrived at the administrative offices in response to Dr. Brennan's summons on April 16, 2002. Mr. Starr announced in the main office, in front of several members of the school staff, that he was not going into Dr. Brennan's office, and he told Dr. Brennan not to summon him to Dr. Brennan's office again.17 Dr. Brennan telephoned Ms. Moss on April 16, 2002, after this incident, and advised her that Mr. Starr "had been blatant in his insubordination" and that either Mr. Starr would have to leave the Lake Stevens campus or he, Dr. Brennan, would leave.18 On April 17, 2002, Dr. Brennan conducted a PACES observation of Mr. Starr for his annual evaluation. The Observation Form for Annual Evaluation indicates that Dr. Brennan observed Mr. Starr's classroom performance from "12:30 to 12:50."19 Mr. Starr again failed to have a lesson plan, and Dr. Brennan found that Mr. Starr was deficient in every component of the six PACES domains evaluated. The evaluation form reflects that a post-observation meeting was held on April 19, 2002, at which time Mr. Starr signed the evaluation form and wrote on the form that he did not agree with the evaluation. On April 18, 2002, Dr. Brennan issued a notice advising Mr. Starr that a Conference-for-the-Record had been scheduled for April 22, 2002, to discuss Mr. Starr's failure to comply with the Professional Improvement Plan, gross insubordination, violation of the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and violation of School Board Rule 6Gx13-4A-1.21. According to the Summary of the Conference-for-the- Record, the conference was held in Mr. Starr's absence because of "his refusal to comply with an administrative directive." Dr. Brennan referred in the summary to Mr. Starr's "refusal to report to the principal's office" and categorized the refusal as insubordination and conduct unacceptable for a School Board employee. Assistant Principal Dina Carretta was the only person other than Dr. Brennan attending the Conference-for-the-Record. During the April 22, 2002, Conference-for-the-Record, Dr. Brennan prepared a Professional Improvement Plan for PACES Domain VII, Professional Responsibilities, having found Mr. Starr deficient in that domain, because he failed to comply with the March 15, 2002, Professional Improvement Plan; failed to submit by the required date the activities set out in the Professional Improvement Plan; and failed to comply with "district and school site requirements regarding grade book and student's attendance records." Mr. White again placed Mr. Starr on alternate work assignment at his residence, effective April 24, 2002. Ms. Moss included in the Summary of the Conference-for-the-Record held April 12, 2002, which she prepared on May 3, 2002, a notation that, on or about April 24, 2002, she spoke with Mr. Starr and advised him that he could resign his position if he did not wish to comply with administrative directives and the Professional Improvement Plan activities. According to the notation in the summary, Mr. Starr again affirmed that he would comply with the directives and the plan activities. After she prepared the summary of the April 12, 2002, Conference-for-the-Record, Ms. Moss submitted it to the School Board's attorneys for review because Dr. Brennan and Mr. White had recommended that Mr. Starr's employment with the Miami-Dade County public school system be terminated. The bases for the termination recommendation included gross insubordination, violation of School Board rules, and violation of the Code of Ethics of the Education Profession. In July 2002, after it was decided that a recommendation would be made to the School Board that Mr. Starr be terminated as a teacher with the Miami-Dade County public school system, Ms. Moss met with Mr. Starr to advise him of the recommendation; she also gave Mr. Starr another opportunity to resign his position, which he refused. Summary. The evidence presented by the School Board is sufficient to establish with the requisite degree of certainty that Mr. Starr repeatedly refused to comply with directives and instructions from Dr. Brennan and Mr. Montgomery that were reasonable and within the scope of their authority and that, in at least one instance, Mr. Starr openly and publicly defied an order given by Dr. Brennan. Mr. Starr freely admits that there was a serious lack of discipline among the students in his classroom and that the problems were so severe that he was unable to teach and the students were unable to learn. Mr. Starr also admits that he defied Dr. Brennan in almost everything that Dr. Brennan directed him to do and that he was repeatedly insubordinate towards Dr. Brennan. Although Mr. Starr's defiance of Dr. Brennan's directives consisted, for the most part, of a stubborn refusal to do as Dr. Brennan directed, Mr. Starr did cause a public disturbance in the main office by refusing to enter the principal's office when summoned on April 16, 2002, thereby openly defying Dr. Brennan's authority to summon Mr. Starr to his office. Mr. Starr's refusal to comply with reasonable administrative directives and his blatant defiance of Dr. Brennan reflected discredit on Mr. Starr as a teacher. The evidence is also sufficient to establish with the requisite degree of certainty that, from December 2001, until he was removed from the classroom on April 24, 2002, Mr. Starr did not make any effort to work with Mr. Montgomery or with his Professional Growth Team to improve his teaching and class management deficiencies, nor did he make any effort to complete the activities set forth in the Professional Improvement Plan that were designed to assist him in achieving professional growth. Mr. Starr's failure to strive for professional growth by working to correct the deficiencies identified in Mr. Montgomery's December 3, 2001, and March 1, 2002, observations negatively affected his ability to teach his students. Mr. Starr refuses to accept responsibility for the lack of discipline in his classroom. Rather, he faults Dr. Brennan for failing to help him impose discipline on those students who were misbehaving and defying Mr. Starr's authority. According to Mr. Starr, the six-step discipline plan did not work, and, once the students realized that there were no consequences if they behaved badly, it was impossible for him to manage the students in his classes. Mr. Starr also believes that, if Dr. Brennan cared about Mr. Starr's professional development, Dr. Brennan would have "developed a specific strategy of corrective action for students that were defiant" towards him.20 Mr. Starr considers his defiance of and insubordination towards Dr. Brennan "principled," and he believes that he had "no other reasonable recourse" but was forced by Dr. Brennan to defy Dr. Brennan's administrative directives.21 Additionally, Mr. Starr justifies his refusal to complete the Professional Improvement Plan activities, to keep a standard grade book, to adhere to the six-step discipline plan, and to prepare lesson plans on the grounds that Dr. Brennan behaved towards him in an abusive and belligerent manner and attempted to set him up for termination. It may well be, as Mr. Starr contends, that Dr. Brennan began losing patience with Mr. Starr, as the 2001-2002 school year progressed; it may well be that Dr. Brennan's manner towards Mr. Starr became increasingly abrupt; and it may well be that Dr. Brennan could have provided Mr. Starr with more assistance than he was willing to provide. Whatever Dr. Brennan's failings as Mr. Starr's principal, however, Mr. Starr was not justified in defying Dr. Brennan, in refusing to obey Dr. Brennan's directives, and in generally behaving in a manner inappropriate for a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order Finding that Stephen J. Starr, Jr., violated School Board Rule 6Gx13-4A-1.21 and committed gross insubordination and misconduct in office; Sustaining his suspension; and, Terminating his employment as a teacher with the Miami-Dade County public school system. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 31st day of March, 2003.
Findings Of Fact As indicated, this case has been presented upon a facts stipulation between the representatives of the parties and the agreement for submission of certain evidential items in aid of the fact stipulation. The exact terms and details of the facts stipulated are as follows:
Recommendation It is recommended that the Respondent, Duval County School Board, allow the Petitioners claim for tenure effective the beginning of the academic year 1977- 78, with full benefits, including back pay. DONE AND ENTERED this 30th day of October, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Patricia A. Renovitch, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32304 Thomas E. Crowder, Esquire Assistant City Attorney 1300 City Hall Jacksonville, Florida 32202
The Issue The issues concern the claim by the Petitioner to relief for alleged age discrimination. See Section 760.10, Florida Statutes. In particular, it is alleged that the Respondent dismissed the Petitioner from employment with the Duval County School Board based solely upon his age, in violation of the aforementioned statute. There is presented the collateral issue, which is the claim by the Respondent that this dismissal based upon age was authorized by Section 231.031, Florida Statutes.
Findings Of Fact This cause is presented through the petition for relief from an alleged unlawful employment practice which the Petitioner filed with the Florida Human Relations Commission. The service date of that petition was May 9, 1984. Duval County School Board, Duval County, Florida, was the named respondent. Through the petition document Petitioner claims that the Respondent committed an unlawful employment practice by forcing the Petitioner to take an involuntary retirement due to his age. There being no successful informal resolution of this dispute, the matter was referred to the Division of Administrative Hearings for a formal Section 120.57(1), Florida Statutes, hearing, which was held on August 20, 1984. The petition is brought under the authority of Chapter 760, Florida Statutes, formerly Chapter 23, Florida Statutes. Petitioner is an individual within the meaning of Section 760.02(5) and .10(1), Florida Statutes. Respondent is an employer within the meaning of Section 760.02(6), Florida Statutes. Petitioner, Robert P. Morrow, was continuously employed as a teacher by Respondent, Duval County School Board, from September, 1962, through June, 1983. During his employment he held tenured status or continuing contract status through the close of the 1981-1982 school year. The balance of the time in which he served as a teacher in the system was in the capacity of an employee on an annual contract basis. This latter arrangement pertains to the school year 1982-1983. Petitioner celebrated his seventieth birthday on September 26, 1981, which was shortly after the beginning of the 1981-1982 school year. In early 1982 Petitioner received a memorandum from Dalton D. Epting, Director of Certificated Personnel of the Duval County Schools, indicating that in view of the fact that the Petitioner would reach 70 years of age within the school year, and in keeping with Section 231.031, Florida Statutes, Petitioner should request an appointment with his principal, one Ronel J. Poppell. Epting had prepared the memorandum based upon information he had been given indicating that the Petitioner would reach 70 years of age within the 1981-1982 school year. In keeping with the suggestion of the memorandum from Epting, Petitioner spoke with Principal Poppell and in that conversation indicated a desire to teach for another year or two beyond the 1981-1982 school year. Poppell spoke to Epting and was reminded of the existence of Section 231.031, Florida Statutes, pertaining to teachers who have obtained 70 years of age. Epting did not advise Poppell on the question of whether to retain the Petitioner as a teacher in the Duval County high school where Poppell served as principal and Petitioner acted as a teacher. Out of the conversation between the Petitioner and Poppell, Poppell determined to allow the Petitioner to remain as a teacher at the subject school for one more year, i.e., the school year 1982-1983. As alluded to before, this arrangement was consummated and Petitioner served as a teacher at Nathan Bedford Forrest Senior High School in the school year 1982-1983 based upon an annual contract arrangement, as opposed to continuing contract. While Section 231.031, Florida Statutes, refers to the superintendent making the decision for retention, in fact Poppel caused the retention of Petitioner in the school year 1982-1983. The effects of such retention were to cause another teacher to be "surplused" who had been involved in the overall program at the school. This arrangement lasted for the 1982-1983 school year. Generally speaking Herb A. Sang, Superintendent of Schools in Duval County, Florida, makes the decision on the question of retention of 70year-old teachers based upon the recommendation of the principal and other school board staff members. Normally, according to Sang, a teacher who has reached 70 years of age would be retired as provided by Section 231.031, Florida Statute. If retained, per Sang, that retention is based upon the needs of the school system and not the record of achievement of the individual teacher in question. In application, teachers who are 70 years old will not be retained unless there is a specific need within the school system for services which they can provide, i.e., a specialty which cannot be filled by teachers under 70 years of age or for reasons of continuity of student projects in which the teacher is involved over more than one school year. On March 3, 1983, Principal Poppell completed an annual evaluation of the Petitioner's performance and on that occasion, as had been the case in all evaluations made of the Petitioner as an employee of the Duval County School System, Petitioner was found to be a satisfactory teacher, the highest possible rating that could have been given. Nonetheless, Poppell noted in the evaluation form that the Petitioner would not be recommended for an extension of his annual contract based upon Section 231.031, Florida Statutes. This opinion was expressed in a March 4, 1983, letter from Poppell to the Petitioner in which it was indicated that Poppell would not recommend that Superintendent Sang renew the annual contract of the Petitioner. In that correspondence Poppell indicated that he felt no further obligation to the Petitioner reference extension of his contract beyond 1982-1983, which extension was based upon Poppell's understanding of the discussion with the Petitioner in 1981-1982 in which the Petitioner had indicated that he would wish to teach for another year or two. In furtherance of Poppell's suggestion, Petitioner was not renewed as a teacher in Duval County and that decision was reached based upon the fact that the Petitioner was over 70 years old. No attempt was made to compare the relative merits of the Petitioner's performance with that of persons younger than 70 years of age, in deciding who to employ on annual employment as teachers for the school year 1983-1984.
Findings Of Fact Mr. Johnny Collins is the Superintendent of the Holmes County School District and has been at all times pertinent hereto. In April of 1981 Superintendent Collins first nominated the Petitioner, Myron Hudson, to be placed in the principalship at Ponce de Leon High School. The School Board rejected the nomination on July 20, 1981. One of the reasons for rejection of the initial nomination for the 1981-82 school year was the Petitioner's lack of a Rank II certificate, as well as an obligation felt by the Board to give the position to another person. The Petitioner took no legal action then, but the Superintendent, Mr. Collins, requested a hearing regarding rejection of his recommendation by the School Board, the School Board denied the request and the cause went to the First District Court of Appeal. The Board's denial of the Superintendent's request for hearing was affirmed per curiam in Collins v. The Holmes County District School Board, Case No. AH-169 (July 1, 1982). A temporary restraining order was issued by the Circuit Court in and for Holmes County restraining Superintendent Collins from interfering with Mr. Gerald Commander's exercise of his duties as Principal of Ponce de Leon High School, Mr. Commander being the School Board's choice for the position after it rejected the initial 1981 recommendation of Mr. Hudson for the job. Along with the rejection of Mr. Hudson's initial recommendation for the principalship for the 1981-82 school year, two other School Board employees, Ms. Saunders and Ms. Carroll, were also rejected. Those matters ultimately came before the Division of Administrative Hearings for formal hearing and those petitioners obtained a favorable recommendation by the Hearing Officers presiding. The School Board adopted the Hearing Officers' recommendations that those two persons be hired in the positions for which Superintendent Collins had recommended them, this in spite of the presence of the restraining order related to all three cases. In any event, the Petitioner, Mr. Hudson, during the interim after his initial rejection, obtained a master's degree and a Rank III teaching certificate, which he possessed before the second recommendation which is the sole subject of thee instant proceeding. In April 1982 Superintendent Collins again recommended Mr. Hudson for the position of principalship of Ponce de Leon High School. By letter the Board rejected the recommendation on April 21, 1982, advising the Petitioner as the reason for that action that: "A. The Superintendent is under restraining order which prohibits him from interfering with Gerald Commander as Principal of Ponce de Leon High School. There is still pending litigation concerning the Superintendent's nomination of you and the Board's rejection of same for the 1981-82 school term. The board has a continuing contract with Gerald Commander as a principal, and as such the board is obligated to place Mr. Commander in a principal's position within the Holmes County School System." The Board, then acting upon its own motion, ordered the subject position filled by Mr. Gerald Commander, the former School Superintendent whom Mr. Collins had defeated in the election. The Petitioner, Myron Hudson, then requested a formal administrative hearing contending that the Board did not have "good cause" to reject Superintendent Collins' nomination. No question was raised concerning Mr. Hudson's qualifications to hold the position for which he was recommended. He is a ten-year classroom veteran who has held a continuing contract of employment as a teacher in the Holmes County School District since 1976. At 30 years of age, he is well above the minimum age required to hold a principalship and his academic qualifications meet or exceed the statutory requirements for a principal's position. Mr. Hudson earned an AA degree from the Chipola Junior College in 1970, a BSA degree from the University of Florida in 1973, and an MA degree from Troy State University in December of 1981. After obtaining his master's degree, the Petitioner applied for and was granted a Rank III teaching certificate by the Florida Board of Education. All these qualifications were earned prior to the principalship recommendation for the 1982-83 school year which has become the subject of this proceeding. There is no dispute that the Petitioner meets the statutory qualifications for the position. There has been no evidence to indicate that he is possessed of other than a favorable moral character, and he enjoys an excellent reputation as a teacher. No reasons other than those quoted above were given in the official communication by the School Board to the Petitioner as reasons for the rejection of his nomination, nor were any other reasons relied upon by the Board at the hearing. Recommendations for employment with the Holmes County District School Board are recommended to be filled, and are filled, on a year-to-year basis. The recommendations are made by the Superintendent in April of each year for the positions which must be filled in the fall of the school year. Unrefuted testimony by witnesses for the Petitioner and Respondent establishes that the restraining order, as well as the "litigation" referred to in the written reasons for the Petitioner's rejection, was related to the issue raised by Superintendent Collins' first nomination of Petitioner Hudson, which occurred in April 1981. The restraining order and court proceedings do not relate to the subject matter of the current dispute which is the sole subject of this proceeding, that is, the April 1982 recommendation of Petitioner Hudson for the principalship for the 1982-83 school year. There is no dispute that other cases involving Petitioners Saunders and Carroll (DOAH Cause Nos. 81-2013 and 81-2190) also were in4olved in and subject to the same restraining order entered by the Circuit Judge. Both of those cases have gone to recommended order by the Hearing Officers presiding, both petitioners received favorable recommendations, and the School Board adopted the recommended orders and hired the two petitioners without apparent concern for the restraining order. Both Petitioners Saunders and Carroll in those cases were named parties to the restraining order which the Board relied upon in part as "cause" in this proceeding. Mr. Gerald Commander was hired by the School Board for the principalship of Ponce de Leon High School. Mr. Commander holds a continuing contract dating back to 1962, which is specifically a continuing contract as a principal. Mr. Commander did not, however, work continuously as a principal under that contract. When he was defeated by Mr. Collins in the 1980 election for the position of School Superintendent, he drafted a memorandum after the election and while he was still filling his unexpired term, recommending himself for an administrative position in the County School Board office. The Board accepted his recommendation and hired Mr. Commander in an administrative position in the county office starting in January 1981 until the end of that school year. During that period of time, several principalships came open, but Mr. Commander did not express an interest in any of them. He did not seek a principalship position until July of 1981 when he sought the position at Ponce de Leon High School for which Petitioner Hudson had been recommended in April 1981. In July 1981 the Board rejected the recommendation for Petitioner Hudson. Although it has been the Board's position in this proceeding that if the recommendation of Superintendent Collins had been accepted, that there would be no position in which to place Mr. Commander, it has been established by the evidence that, indeed, the Board had a vacant principalship in the School District after the Petitioner was rejected for the principalship, which it filled, although it did not place Mr. Commander in that position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is, therefore, RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools of that county to place Myron Hudson in the position of Principal of Ponce de Leon High School. DONE AND ENTERED this 13th day of August, 1982, at Tallahassee, Florida. P. MICHAEL RUFF, 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 13th day of August, 1982.
The Issue Whether the employment of Petitioner, Cornelius B. Frankliln, was improperly terminated by Respondent, The School Board of Seminole County, in the summer of 1988.
Findings Of Fact Petitioner, C.B. Franklin, began service with the School Board of Seminole County in the position of teacher in the 1951-52 academic year. In 1955, Petitioner was awarded a continuing contract of employment by Respondent in the position of teacher. Said continuing contract was in effect at all times relevant hereto. Petitioner was last employed by the School Board of Seminole County, Florida, as an Assistant Principal II at Sanford Middle School on an annual contract of employment, which terminated of June 10, 1989. During his employment at Sanford Middle School as an assistant principal from 1980 through 1988, Petitioner received satisfactory annual evaluations. In March, 1988, Owen McCarron, Assistant Superintendent, applied a "staffing formula" for each school in Seminole County. The staffing formula is not a school board rule but is a formula that the school board approves based upon student population to determine the number of teachers, secretaries, assistant principals, and others needed at each specific school. Mr. McCarron is responsible for the application of the formula. The application of the formula is not submitted to the school board for approval. Mr. McCarron made a mistake in the preparation of the staffing formula for 1988/89. The mistake made was that the number of assistant principals for Sanford Middle School would be reduced from two to one. Having been informed of a reduction, Dan Pelham, Principal, Sanford Middle School, determined that he would have to choose among the Assistant Principal II's employed and decided not to recommend the continued employment of Petitioner. Owen McCarron discovered the mistake and notified Dan Pelham, sometime in late March, 1989. However, Dan Pelham chose not to recommend the continued employment of Petitioner but rather to advertise the position as being vacant. When Mr. Pelham was notified the position was reinstated he considered it to be an "opportunity" to consider alternative persons for the position. Mr. Pelham's decision was based on Petitioner's performance as reflected by his annual evaluations and faculty input. Mr. Pelham held a conference with Petitioner on April 8, 1988, and Petitioner was advised that his contract as an assistant principal at Sanford Middle School would not be renewed for the school year 1988-89, because the School Board had reduced the number of assistant principal positions at Sanford Middle School from two (2) positions to one (1). Petitioner was offered a teaching position, under his continuing contract status, at Sanford Middle School as a peer counselor. The Respondent did not act to approve the reduction in positions, nor was the Respondent notified that Petitioner was not being recommended for reemployment. The School Board does not have a rule to govern how the decision is to be made upon a reduction in staff. At the time of the hearing and at all relevant times prior thereto, Petitioner held a valid Florida Department of Education certification in the teaching fields of health education, physical education and supervision and administration. On or about June 9, 1989, one day prior to the expiration of Petitioner's contract as Assistant Principal II, the Petitioner met with Dan Pelham and John Reichert, Director of Personnel. At that time, Petitioner was again advised by Mr. Pelham that he had not changed his decision not to renew Petitioner as an assistant principal, even though he had been advised that the position had been restored. The Petitioner was advised that he could apply for the vacant Assistant Principal II position but he would have to submit an application and a resume. The Petitioner responded that Dan Pelham was well aware of his qualifications, and that a copy of his resume was on file. At that time, Mr. Pelham offered Petitioner the peer counselor position, but salary was not discussed. Petitioner was given copies of documents containing the job information for the position of peer counselor. The position had not previously existed and had not been advertised. Petitioner was reassured that he had employment with the School Board as a teacher under his continuing contract status. At the same meeting, Mr. Reichert advised Petitioner to accept the teaching position, and at the same time apply for the assistant principal vacancy at Sanford Middle School. Petitioner applied for state retirement on June 27, 1988, and his retirement was accepted by the School Board of Seminole County thereafter, on July 13, 1988. Prior to the time Petitioner submitted his application for retirement, he was verbally offered a teaching position under his continuing contract status for the 1988-89 school year at Sanford Middle School. Petitioner is an experienced school administrator, holds a master's degree in [school] administration and supervision from Rollins College, in Winter Park, Florida. As a component of his master's degree requirement he had instruction in school law. Petitioner was aware that his employment as an assistant principal was on the basis of an annual contract of employment and that the position was not entitled to continuing contract status. Petitioner did not apply for the position of Assistant Principal II (secondary) at Sanford Middle School, after it was declared vacant and advertised (in the Spring of 1988), even though he was told that he would be considered for reappointment to the position if he did. Petitioner was aware that if he accepted the offered position of peer counselor his pay would resume in the Fall of 1988, along with all of the other teachers, and that he would be paid at the top of the teaching salary scale on the basis of his thirty (30) plus years of service. Petitioner did not respond, verbally or in writing, to the offered position of peer counselor subsequent to its offer and prior to his retirement. Mr. L. David Pelham, the principal of Sanford Middle School, was not obligated to reappoint Petitioner to the position of assistant principal, after June 10, 1988. However, Petitioner was entiled to a performance assessment prior to that date. Mr. Pelham recognized that Petitioner held continuing contract status and was entitled to be placed in a teaching position at Sanford Middle School for the 1988-89 school year and thereafter. Petitioner never discussed his decision to retire with Mr. Reichert or Mr. Pelham. Neither person had any communications with Petitioner after the June 9, 1988 meeting. Petitioner's annual contract of employment clearly put him on notice that neither he nor the school board owed the other any further contractual obligation after June 9, 1988 and that he had no expectancy of employment as an assistant principal after June 10, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the affirmative relief sought by the Petitioner should be DENIED. It is further RECOMMENDED that each party should bear their own costs and attorneys fees. DONE AND ENTERED this 31st day of October, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2007 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Findings of Fact Paragraphs 1 (1st three sentences), 2, 3, 4 (1st sentence), 5, 6, 7, 8, 10 (except the last 2 sentences) - Accepted in substance. Paragraphs 4 (2d sentence), 9,12 - Rejected as against the weight of the evidence. Paragraph 11 (except sentence 2)-Rejected as subservient. Respondents Findings of Fact Paragraph 1 through 26 - Accepted in substance. COPIES FURNISHED: Robert E. Hughes Superintendent of Schools c/o Seminole County School Board 1211 Melonville Avenue Sanford, Florida 32771 John D. Carlson, Esquire Gatlin, Woods, Carlson & Cowdery 1709-D Mahan Drive Tallahassee, Florida 32308 Ned N. Julian, Jr., Esquire Stenstrom, McIntosh, Julian, Colbert, Whigham & Simmons, P.A. Post Office Box 1330 Sanford, Florida 32772-1330 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
