The Issue The issue in this case is whether Respondent violated Subsections 1012.795(1)(d), 1012.795(1)(g), and 1012.795(1)(j), Florida Statutes (2006), and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(h), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. In accordance with the Order of Pre-hearing Instruction entered in this cause the parties submitted a Joint Pre-hearing Stipulation. Included in that document were the following stipulations of fact: Respondent holds Florida Educator’s Certificate 798852, covering the area of Athletic Coaching, which is valid through June 30, 2012. At all times pertinent to the allegations in the Administrative Complaint in this case, Respondent was employed as an Exceptional Student Education Teacher at Atlantic High School in the Volusia County School District. C. W. was a sixteen-year-old female student at Atlantic High School. On or about December 2, 2008, while C. W. was in another teacher’s geometry class, Respondent sat next to C. W. at a table toward the rear of the class. Respondent initiated an exchange of notes (sic) between himself and C. W. The note stated: Respondent: What’s your boyfriends name? Student: Don’t have one why? Respondent: I don’t believe that!! Student: Why not???? Respondent: Because you look like you should have one! Student: Why do I need one LOL no guys are attractive here . . . why do I look like I should have one? Respondent: I never said you needed one!! You just have that look and I can’t say why. Student: ooo so there’s a look that people have when they have a b/f or g/f. Why can’t you say why? Respondent: You are too sexy not to have a ton of guys chasing after you and one of the (sic) should have caught you. If I was in high school I would most definitely be one of them. Student: haha well its not like that at all. They are all UGLY Respondent: So what are you looking for? A super model? The above-referenced note between Respondent and C. W. was inappropriate. C. W. put the note away and did not respond to Respondent’s last inquiry. Respondent attempted to retrieve the note from C. W. C. W. kept the note and turned it in to school administration and reported the Respondent’s conduct. As a result of the foregoing exchange, the student, C. W., was very uncomfortable. She began to think that Respondent had been "coming on" to her. Although Respondent denied that assumption, he acknowledges that the exchange was inappropriate and in poor judgment. Further he acknowledged that the exchange had left C. W. uncomfortable. At no time has Respondent ever denied that the exchange took place and he has not attempted to avoid punishment for the incident. After the exchange and becoming aware of C. W.'s unease, Respondent made every effort to avoid C. W. so that neither would be uncomfortable. To that end the school administration moved Respondent from the classroom where C. W. was assigned, to another classroom. Respondent was disciplined by the school district and remained at Atlantic High School for the remainder of the school year. C. W.'s mother believes Respondent should have been removed from the school. When he was not, ultimately C. W. transferred to another school to complete her senior year. C. W. believes that she was treated unfavorably by students who endorsed Respondent and did not support her decision to report the note-writing incident. Respondent was previously disciplined by another school district for whom he worked. The prior disciplinary event also led to action by the Education Practices Commission. The prior act was dissimilar in facts to the instant case. Respondent is a well-educated and experienced teacher. He holds bachelor and master degrees. Respondent became a teacher in 1998 and has been continuously employed by various school districts since that time. Additionally, he taught at a detention center for youthful offenders for approximately one year. In short, Respondent should have known better than to engage in note writing with C. W., and should not have initiated the note. In addition to distracting C. W. during a class when she should have been allowed to engage in learning, Respondent's conduct in continuing the note writing was immature and contrary to meaningful teaching practices. Respondent has always achieved acceptable performance evaluations. Despite the unrelated lapses in judgment resulting in disciplinary actions, Respondent has continued in employment with the school district. At no time has Respondent ever attempted to touch C. W. inappropriately. At no time did Respondent actually verbally speak to C. W. The entire inappropriate exchange consisted of note writing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a panel of the Education Practices Commission enter a final order finding Respondent guilty of violating the standards of conduct applicable to educators in Florida, found in Florida Administrative Code Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), imposing an administrative fine in the amount of $2,000.00, and requiring a period of probation not less than one year under the terms and conditions deemed most appropriate by the panel. DONE AND ENTERED this 28th day of April, 2010 in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 28th day of April, 2010. COPIES FURNISHED: Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400 Joan Stewart, Esquire FEA/United 300 East Park Avenue Tallahassee, Florida 32301 Ron Weaver, Esquire Post Office Box 5675 Douglasville, Georgia 30154-0012 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Marion Lambeth, Bureau Chief Bureau of Professional Practice Service Department of Education Turlington Building, Suite 224-E Tallahassee, Florida 32399-0400
Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner's application for a Florida Educator's Certificate should be granted or denied for the reasons set forth in the Notice of Reasons issued by Respondent on December 13, 2010.
Findings Of Fact Based on the evidence presented at hearing, the following Findings of Fact are made: Ms. Cappi Cay Arroyo1/ was born in Boulder, Colorado, on September 16, 1964. On or about August 22, 1986, Ms. Arroyo knowingly and intentionally distributed cocaine to another person, knowing that what was distributed was cocaine or some other prohibited drug. From 1984 until in or about December 1986, she willfully and knowingly entered into an agreement to accomplish the illegal objective of the distribution of cocaine, with the intent to commit the offense of distribution of cocaine. Ms. Arroyo pled guilty pursuant to a plea agreement and was convicted of the offenses of distributing cocaine under 21 U.S.C. § 841(a)(1) and of conspiracy to distribute cocaine under 21 U.S.C. § 846 in the United States District Court for the District of Hawaii. Ms. Arroyo committed acts involving moral turpitude. On January 28, 1988, Ms. Arroyo was sentenced to two years imprisonment with a Special Parole Term of three years, with the execution of the sentence suspended and Ms. Arroyo placed on probation for a period of five years, on the condition that she pay a fine of $500.00 and serve 100 hours of community service. On April 3, 1991, Ms. Arroyo was discharged from probation. Ms. Arroyo later returned to Colorado. She attended Colorado Christian University and received her Bachelor's Degree in Computer Information Systems in 2002. She began working at Grand Junction High School in 2005 as a Library Media Specialist, where she worked until 2010. She received her Master's Degree in Educational Media in 2006 from the University of Northern Colorado. She received an Outstanding Educator for 2007 award given by the Grand Junction Area Chamber of Commerce, and was selected as the Outstanding Teacher by the students of the Class of 2009. The Ethics in Education Act, creating section 1012.315, Florida Statutes, and adding the phrase "as defined by rule of the State Board of Education" to section 1012.795(1)(d), became effective on July 1, 2008. On June 3, 2010, Ms. Arroyo submitted an on-line application for a Florida Educator's Certificate as an Educational Media Specialist. On the application, she provided her social security number and answered "Yes" to a question asking if she had ever been convicted of a criminal offense. She filled in the "Charges" block with the words "Drug Charges" and the "Disposition" block with the word "Probation." By June 9, 2010, the Bureau of Educator's Certification had received the application, the evidence of her bachelor's degree, the grades transcript, and the fee. Ms. Arroyo meets the basic requirements for licensure. She was at least 18 years of age at the time of her application; she submitted an electronically authenticated affidavit that stated she would uphold the principles incorporated in the Constitution of the United States and the Constitution of the State of Florida and that the information provided in her application was true, accurate, and complete; she documented her receipt of a bachelor's degree from an accredited institution and a master's degree; she submitted to background screening; she is of good moral character; she is competent and capable of performing the duties, functions, and responsibilities of an educator; she holds a valid professional standard teaching certificate issued by the State of Colorado, demonstrating her mastery of general knowledge, mastery of subject area knowledge, and mastery of professional preparation and education competence. The Department of Education is the state agency responsible for licensure of instructional personnel for the public schools. On or about July 7, 2010, the Bureau of Educator Certification of the Department of Education issued Ms. Arroyo an Official Statement of Status of Eligibility. This statement advised Ms. Arroyo that she was eligible for a three-year nonrenewable Temporary Certificate upon receipt by the Bureau of: 1) documentation showing verification of employment; 2) a request for issuance of certificate on the appropriate certification form from a Florida public school; and 3) results of her fingerprint processing, noting that if there was a criminal offense, her file would be referred to Professional Practices Services for further review and that issuance of her Temporary Certificate would be contingent on the results of that review. The Statement included some additional requirements for the issuance of a Florida Educator's Certificate valid for five years covering Educational Media Specialist (Prekindergarten- Grade 12). Mr. Troy Sanford, the principal at Horizon Academy at Marion Oaks, a school in the Marion County School District, interviewed Ms. Arroyo for a media specialist position at the school in August of 2010. At the end of that interview, she began to tell Mr. Sanford of her conviction, but he stopped her and told her that it was the Human Resources Department that checked into applicant's backgrounds. When Mr. Sanford later talked to the Human Resources Department, he advised them that he was recommending someone for the position who had indicated she had something in her background, and asked to be told if it would hinder her appointment. The Human Resources Department had further conversations with Mr. Sanford, telling him about a criminal conviction, but stating that because it had occurred over ten years ago, it should not be a limiting factor. Ms. Arroyo was hired at Horizon Academy and worked there during the 2010-2011 and 2011-2012 academic years as a library media specialist. Ms. Arroyo has excellent knowledge of her subject area and exhibits great enthusiasm in encouraging students to become life-long readers. Ms. Arroyo has effectively become a "co-teacher" with many of the classroom teachers and has helped them craft research projects that are meaningful to students. Horizon Academy has a high percentage of minority students, some of whom are underprivileged. Ms. Arroyo has made special efforts to get books into the hands of students who have never read a book before. She has created a culture of reading at Horizon Academy. Her efforts at her school have caused the library circulation to dramatically increase, which has had an effect on the district-wide data. Ms. Arroyo re-arranged the library to accommodate more students. Ms. Arroyo was selected as the Horizon Academy teacher of the year. Ms. Arroyo became a member of the Library of Congress Teaching with Primary Sources Mentor Program, one of only 19 educators from across the United States with such membership. Ms. Arroyo has helped children with lost or overdue books who are not permitted to withdraw books from the library by loaning them her personal books. She has purchased books from the Book Fair and given them to underprivileged students. She has given Christmas gifts to needy children who might otherwise not receive any gifts. When Ms. Arroyo came to Horizon Academy, it was a "C" school, but it is now an "A" school. The principal believes that there was a direct link between Ms. Arroyo's efforts and the improvement of the school. On October 13, 2010, the Department of Education received background check information on Ms. Arroyo from the Federal Bureau of Investigation and the Florida Department of Law Enforcement. On October 19, 2010, Ms. Arroyo's file was referred to the Bureau of Professional Practice Services for consideration of the background information regarding her conviction. On October 22, 2010, Ms. Arroyo was sent a letter from Ms. Ellie Evans, Applicant Investigator of the Bureau, advising Ms. Arroyo that her application had been referred to the Bureau of Professional Practices Services because of her criminal history, and requesting further information regarding Ms. Arroyo's conviction. On November 16, 2010, the Department received from Ms. Arroyo copies of a judgment in her criminal case, United States v. Cappi C. Eminger, Case No. CR87-01061-03, from the United States District Court for the District of Hawaii, dated January 28, 1988, consisting of three pages, and including an Order Terminating Probation Prior to Original Expiration Date in the same case filed April 8, 1991, consisting of one page. On December 13, 2010, Commissioner of Education Eric Smith sent Ms. Arroyo a letter advising her that her application for a Florida Educator's Certificate was denied, attaching a Notice of Reasons, and advising her of her right to a hearing on the intended action. Ms. Arroyo requested a formal hearing. Ms. Arroyo will be unable to pursue a career teaching students in Florida without educator certification. Ms. Arroyo is substantially affected by the intended decision to deny her certification. On or about March 23, 2011, the Bureau issued Ms. Arroyo a second Official Statement of Status of Eligibility. This statement advised Ms. Arroyo that her Colorado Teaching Certificate had been received and that she was eligible for a Florida Educator's Certificate valid for five years upon receipt of clearance to issue the certificate from the Bureau of Professional Practices Services. On or about June 8, 2011, Ms. Arroyo applied to the Florida Office of Executive Clemency for a pardon of her convictions. Ms. Arroyo also applied to the President of the United States for a pardon. On October 28, 2011, the Department received from Petitioner a notice of intent to rely on the default license provision in section 120.60(1), Florida Statutes. Although the charges of statutory violations drafted by Respondent as grounds for the denial of her application could have been crafted with more care, Petitioner was not prejudiced in preparing her defense. Hearing was held on December 6, 2011. At hearing, Petitioner testified that she did not distribute cocaine and that she did not conspire to distribute cocaine, maintaining that her guilty plea was the result of coercion and intimidation by Drug Enforcement Administration (DEA) agents. Her testimony on these points was not credible. She testified that the DEA agents took her vehicle and showed up at her house with guns. She testified that there were 33 charges in the indictment. She testified that she told the DEA agents that it was her ex-boyfriend who had distributed cocaine. She said that the DEA agents told her that she was guilty simply because she was aware of what he did, even if she did not distribute cocaine herself. Petitioner testified that she could not remember whether her attorney advised her about entering into the plea agreement. At another point in her testimony she testified that her attorney did not advise her as to the guilty plea. She was somewhat evasive during cross-examination as to her appearance before the judge when pleading guilty. She later said that she did not remember that appearance at all. She testified she did not remember the judge asking her if she knowingly and intentionally distributed 55.2 grams of cocaine. Petitioner did testify that she believed what the DEA agents had told her and signed a plea agreement that she was guilty of 2 of the 33 charges, based only upon this mistaken belief. Ms. Arroyo's testimony and selective memories about these long-ago events seemed to be shaped more by convenience than candor. Ms. Arroyo failed to prove her guilty plea resulted from threats, coercion, or fraudulent means. Despite the fact that Ms. Arroyo distributed cocaine and conspired to distribute cocaine and her selective memories and lack of credibility concerning those events, she is of good moral character. A few isolated events are not determinative of her character today. Ms. Arroyo's actions since her youthful criminal activity show a consistent pattern of personal accomplishment and public service over a very long period of time, with no evidence of any other criminal activity. Ms. Arroyo has substantially rehabilitated herself. Her receipt of several education awards demonstrates that she is a dedicated and accomplished professional. Testimony at hearing established that Ms. Arroyo exhibits a compassionate and generous attitude toward students, especially the underprivileged. On January 3, 2012, Respondent filed certified copies of records of the United States District Court for the District of Hawaii, including sentencing minutes, the indictment, a superseding indictment, sentencing memorandum, and other documents, requesting their official recognition and admission as a late-filed exhibit. The State Board of Education has not defined the term "gross immorality" by rule, and there was no evidence presented that Ms. Arroyo's behavior met any rule definition of that term.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a Florida Educator's Certificate, without prejudice to her reapplication should she later become eligible. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 31st day of May, 2012.
Findings Of Fact Respondent holds Florida Teacher's Certificate No. 097813, Rank II, Post Graduate, valid through June 30, 1987, covering the areas of Elementary Education, Art Education, Early Child Education, Reading and Junior College. During the 1976-1977 school year Respondent was employed as an elementary school teacher at Astoria Park Elementary School in Leon County, Florida. Petitioner received a suggestion of Respondent's incompetence from school officials in Leon County, Florida, on October 14, 1977, and pursuant to the authority contained in Rule 6A-4.37, Florida Administrative Code, a professional inquiry into the allegation of Respondent's incompetence was conducted. On July 10, 1979, a report was submitted to the Executive Committee of Respondent which recommended that the Commissioner of Education find probable cause to believe that Respondent was guilty of acts constituting grounds for revocation or suspension of her teaching certificate. Pursuant to that recommendation, probable cause was found by the Commissioner on July 13, 1979. The filing of a petition seeking revocation of Respondent's teaching certificate was thereupon directed. On October 5, 1976, Respondent neglected to provide adequate or competent instructional plans for a substitute teacher, even though she had previously been advised by her principal that her absence from her classroom would be necessitated by a professional workshop; that a substitute would be required to conduct her classes; and that instructional plans for substitutes were essential to the accomplishment of the educational goals during her absence. On January 6, 1977, Respondent was warned in writing by her principal that, in accordance with school policy, adequate lesson plans for substitute teachers were necessary in order to insure a continued movement toward instructional goals for her students. Notwithstanding this warning, however, Respondent, during an absence necessitated by illness from January 31, 1977 through February 4, 1977, failed to leave adequate or comprehensible lesson plans and procedures for a substitute teacher. In fact, on various of the days during this time, no lesson plans whatever were left. On December 1, 1976, Respondent failed to deploy audio-visual equipment in a manner in which it could be heard by her class, failed to adequately explain the content of the material presented, and failed to use the equipment in a manner calculated to adequately instruct her students. During this same lesson, Respondent failed to utilize adequate techniques for the management of the behavior of her students, resulting in student behavior which interfered with instruction of her students. During the 1976-1977 school year, Respondent consistently maintained charts and visual teaching aids in her classroom in a disorganized and illogical manner, demonstrated poor enunciation and a lack of plural/singular distinction in the pronunciation of words, demonstrated incorrect letter formation and a lack of continuity of lessons from one day to the next. In addition, at various times during the 1976-1977 school year, in the process of grading and evaluating her class's test papers, homework and standardized test results, Respondent failed to accurately and adequately grade, evaluate and analyze her students' performance. As a result of Respondent's failure in this regard, her students were not properly advised of whether the tasks they had undertaken to learn were adequately understood, and were thus potentially permitted to retain inaccurate concepts of basic skills. Throughout academic year 1976-1977, Respondent consistently failed to utilize available instructional materials and equipment, such as student handouts, mimeograph materials and bulletin boards, in a manner calculated to accomplish the tasks for which those instructional aids were designed. In the use of such instructional aids, Respondent consistently misspelled words, used illegible manuscript, misused words and grammar, passed out sloppily prepared materials, and in general failed to utilize teaching techniques sufficient to assure that a particular task or subject was or could be understood by her students. In addition, Respondent consistently maintained her classroom in an unkempt and disorganized condition, despite reasonable requests and warnings from her principal. During this period Respondent constantly rearranged desks and seats in her classroom, causing confusion, disorientation, and general turbulence among her students. On December 3, 1976, Respondent publicly embarrassed one of her students by calling the student a "liar" when the student told Respondent that she had turned in a work assignment to Respondent. Respondent was apparently unable to locate the student's work at that time, but later found the paper on Respondent's desk. Despite this mistake, Respondent failed to apologize to the student or retract her criticism. At various times during the 1976-1977 school year, Respondent inflicted corporal punishment on her students by yanking them from their seats and/or shaking them, even though Respondent had repeatedly been instructed by her principal not to touch a student in any manner except as prescribed by school policy, and in the presence of other instructional or administrative personnel. Throughout academic year 1976-1977, until remedial action was taken by her principal, Respondent consistently failed to adequately and accurately explain her students' progress and goal achievement through evaluative methods and procedures made available to the students' parents. Further, Respondent consistently exhibited during this period incorrect and inappropriate grammar in class and in reports and other communications with her colleagues and students' parents. In addition, Respondent also displayed a cumulative lack of proper grammar and instructional skills, as well as a persistent lack of basic knowledge and inaccuracy in transmitting information in subject areas assigned to her class. On February 1, 1977, Respondent, in violation of school and district policy of which she had repeatedly been reminded, failed to report for school and failed to notify appropriate persons that she would be absent. Respondent was repeatedly counselled by her supervisors concerning her performance in an attempt to provide remedial assistance and advice. Respondent was issued repeated warnings that her persistence in the patterns and practices of conduct set forth above would result in disciplinary proceedings being instituted against her. As indicated earlier in this order, Respondent has asserted, as a defense to allegations of incompetency, that she suffered from medical and/or emotional or mental impairments during the 1976-1977 school year. However, the only medical testimony of record in this proceeding establishes that Respondent displays no gross psychiatric deviations, and is suffering from no diagnosable psychiatric disease.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner/Agency has established by preponderant evidence that there was just cause to dismiss Sakina A. Jones, the Respondent, for alleged misconduct in relation to her teaching of students in alleged violation of Rules 6B- 1.006(3)(a), and 6B-1.006(3)(e), Florida Administrative Code.
Findings Of Fact The Petitioner is the Duval County Florida School District or "School Board" charged with regulating the practice standards for teachers and the manner of practice of teachers who are employed by it in the Duval County School District system. The Respondent is licensed to teach in Florida, holding Florida Educator Certificate No. 831562, effective from July 1, 2000 through June 30, 2002. The Respondent has a Bachelor's Degree in Psychology received on December 11, 1998. She has worked as a substitute teacher for the Duval County School District between approximately September 4, 1998 and August 9, 2000, after which time she became a full-time elementary teacher at Annie R. Morgan Elementary School. The Respondent has a Bachelor's Degree in Psychology. Her training and experience in the field of education beyond college, at which she had no academic training as an educator, at the point she commenced her second year of teaching at Annie R. Morgan Elementary School, in August 2002, included the following: substitute teaching experience at elementary schools. teaching ESE students at DuPont Middle School as a substitute teacher. participation in the Teacher Induction Program during the 2000-2001 school year while full time teaching at Annie R. Morgan Elementary School. having a designated mentor (Mrs. Shipley) from whom to seek guidance. completion of a college level introduction to education course while teaching full time during the 2000-2001 school year. completion of a course in "Teaching Diverse Populations" in the summer of 2001. receiving a book called "Positive Discipline." attending a faculty meeting on classroom discipline which focused on steps that could be taken in the classroom before sending a child to the principal's office. The Respondent had no training in the specifics of teaching and disciplining either ESE students or the educable mentally handicapped (EMH) students which she was teaching at times pertinent to this case. The Teachers' Induction Program in which Ms. Jones participated during the 2000-2001 school year is a program for new teachers in the District which includes assessments involving at least two classroom visits a week. Six "domains" are covered in the program including classroom management, instructional planning and testing, some of which are presented in a workshop format. The program requires a year to complete, at the end of which the principal must assess whether a new teacher has passed or failed in her participation in the program. For the 2000-2001 school year Ms. Jones accepted a position as a full-time, third grade teacher at the Annie R. Morgan Elementary School. The principal that year was Delores Milton. After about five weeks, Ms. Jones was shifted to an ESE class, an area in which she had no training. Later that year she was assigned to an EMH class which she was even less qualified to handle in terms of having any specific training in teaching and disciplining EMH students. Ms. Jones, indeed, had serious reservations about taking the EMH job because of her lack of training or experience with EMH children and she related this to her principal and they had a discussion about it. Ultimately, the principal assured her that she could go to workshops and in other ways get additional training and so Ms. Jones accepted the position because it would guarantee her a position so that she would not be on the "surplus list" (being first subject to lay-offs). Carolyn F. Davis was assigned as Principal at Annie R. Morgan Elementary School on July 1, 2001, replacing Ms. Milton. Ms. Jones' EMH teaching assignment continued into the new 2001- 2002 school year. Her class included twelve boys and two girls ranging in advancement from grade one to grade three. A teacher's assistant was assigned to her on a full time basis. The teacher's assistant, at the beginning of the year, was Tiffany Bullard. Ms. Bullard had been working with Ms. Jones as a teaching assistant the prior school year from approximately November 2000 through the end of the school year in May 2001. That had been her first experience as a teacher's assistant. Due to budgetary cuts, Ms. Bullard was "surplused" (laid-off) on September 4, 2001. Several months later she was re-hired at a different school. A second teacher's assistant worked with Ms. Jones in her classroom after Ms. Bullard departed. This was Arnette Felton. Ms. Felton had a year's prior experience as a teacher's assistant at an elementary school as well as a prior year of such experience at Annie R. Morgan Elementary School. She worked with Ms. Jones from September 5, through October 16, 2001. She asked to be relieved when she claimed that Ms. Jones threw a bottle of "white-out" at a student who ducked, such that the bottle hit Ms. Felton. The totality of the credible testimony reveals that this incident did not happen at, least in that fashion, as Ms. Jones never intentionally threw a bottle of white-out at anyone. In reality, there appears to have been some personal friction between Ms. Felton and Ms. Jones which helped to cause Ms. Felton's departure. Ms. Jones' third teacher's assistant was Brenda Medlock. Ms. Medlock has approximately one year and a half of college and had been serving as a teacher's assistant for ten years in the Duval County School system. She remained with Ms. Jones until Ms. Jones was removed from her teaching duties on or about November 19, 2001. Ms. Medlock had no prior experience with EMH students although she had worked with ESE students and had some training of unknown amount and duration in behavior management while working as a teacher's assistant at a prior school. The EMH students in Ms. Jones class were all students with below average I.Q. who function at grade levels significantly below the norm for their age. Their I.Q. range was from 49 to 69. Greater patience is required in disciplining and instructing EMH students. Relevant federal law protects them from being disciplined for reasons of their disability. In all instances with respect to such students, a determination has to be made concerning whether the conduct for which discipline is about to be meted out is a manifestation of the disability, and if so, there can be no discipline. Some of the students had limited communication skills and difficulties with memory and Ms. Jones was aware of this information concerning her students upon getting to know them. Students with a low I.Q., such as Ms. Jones' students, should not appropriately be made to write sentences repetitively as a disciplinary measure. This is because they would typically not understand and cannot practicably execute the requirement. Upon learning that Ms. Jones had made students write sentences repetitively as a disciplinary measure, Principal Carolyn Davis instructed her not to use this form of discipline at a conference the two had on October 23, 2001. Student Raymond Houston testified. He was placed in the bathroom, which was in the classroom, a number of times for a few minutes as "time out" when he misbehaved. Although the light in the bathroom may have been turned off when this occurred, no one prevented any student, being placed in the bathroom as "time out," from turning the light on. Raymond Houston (R.H.) also stated that he and several other students had to do the "duck walk" or "jumping jacks" as discipline for misbehavior on a number of occasions. He was also required to write sentences such as "I will be good" or "I will pay attention" when he had misbehaved. The teacher's assistant, Ms. Bullard, confirmed that the Respondent had placed children into the classroom bathroom for "time outs." The totality of the credible testimony reveals, however, that these sessions lasted only from three to five minutes and no student had been placed in the bathroom as long as an hour or a half-day or anything of that nature. Ms. Jones also made certain male students do pushups for disciplinary reasons, such as R.H. and T.S. In this connection, some of the calisthenics her students performed were done as part of a fitness program she instilled in her daily lesson plan, including the exercise regimen known as "Tae Bo." Most occasions, when students did exercises such as pushups, were not for disciplinary reasons. Student R.H. also was required by the Respondent to wash at the lavatory and put on a clean shirt, which she had in the classroom to give him. This was because he had not bathed in several days and had a bad odor. While some other students may have observed this, it was done for hygiene reasons and was not done in order to berate the student or expose him to unnecessary embarrassment. During the 2001-2002 school year on one occasion, student "Shaquille's" book bag was taken from him by the Respondent and she put it in a trashcan. This was not a trashcan used for refuse or garbage, however, it was simply a trashcan type receptacle where she would keep students' book bags when they did not need them or when they were not supposed to be in possession of them. Ms. Jones also instituted a system which permitted the children to go to the bathroom three times per day. This system was implemented by having the students use tokens, three apiece, which they could use when they needed to go to the bathroom. This was done to help instill order in the classroom. However, those students who were unable, for various reasons, to comply with this bathroom schedule were allowed to go on an as-needed basis. In any event, the three-bathroom-visits policy was ended by the Respondent one month into that school year. All students at the Annie R. Morgan Elementary School receive a free breakfast every morning, at the beginning of the school day. Breakfast is provided in the classrooms to the students at their desks. Ms. Jones had a rigid five-minute time limit, enforced by a timer, during which the children were to eat their breakfast. She would have the students start in unison (those that were present) and when the timer rang after five minutes, she would make the children discard any portion of breakfast not eaten. Ms. Jones was not aware that there was any prohibition against the five-minute time limit for eating breakfast and for discarding unused food. After being instructed by her principal, at their meeting of October 23, 2001, that the students should be allowed fifteen minutes for breakfast, the Respondent complied. The only exception to this, established in the record, was when student James Brown arrived at school late and missed breakfast. This, however, was involved with an agreement the Respondent had with James Brown's mother, who had informed Ms. Jones that if he were late she could assume that he had already had breakfast, because his mother would ensure that he had already breakfast. The denial of his breakfast, on the day in question, was not due to any cruelty or other violation of the rules referenced herein, but rather because she knew that his mother would have already given him breakfast on that day when he was late. Although the Respondent was accused by witness Arnette Felton of throwing objects in the classroom at students, including pencils, chalk, an eraser and a white-out bottle, the preponderant, credible testimony indicates otherwise. Although the Respondent acknowledged tossing snacks, candy, chalk or pencils to students for them to use during the course of their classroom activities, she never purposely and forcefully threw any object at students in anger or as a misguided disciplinary measure or anything of the sort. Further, although as a classroom management technique the Respondent placed students in time-out in the restroom for a few minutes when she felt it necessary to restore order and decorum in the classroom, she never instructed her assistant to forcibly hold the bathroom door shut to "lock-in" a student for disciplinary reasons. Ms. Felton maintained that she observed Kenny Brown come to Ms. Jones' desk, when told not to, so that Ms. Jones, in anger, threw his book bag in the trash, took his folder out of the book bag and threw it in the sink, getting it wet. The most credible testimony does not support that assertion. It is determined this incident did not occur in this fashion. Rather, Ms. Jones, at most, took student K.B.'s book bag from him and placed it in the receptacle for holding book bags, which happened to be in the form of a trashcan, but which was not used as a trash or garbage can, as found in the other instance referenced above. It is true that Ms. Jones criticized Ms. Felton when she was unable to change a CD disc, calling her a "dummy." This was not done in a way that the other persons or students present in the classroom could hear, however. It is also true that Ms. Jones and Mr. Felton got into a verbal altercation in the classroom for which the Respondent, Ms. Jones, received a reprimand from the principal, Ms. Davis, for engaging in an argument in front of the students. Teacher's assistant Brenda Medlock succeeded Ms. Felton as the teaching assistant for the Respondent. She observed James Brown arrive at school, missing breakfast, on October 29, 2001, which has been discussed above. Withholding breakfast may have been contrary to the principal's instruction, but in this regard it was done for a justifiable reason because, due to the understanding with the student's mother, Ms. Jones knew that he had already had breakfast when he got to school that day when he arrived at school late. Ms. Medlock also observed, on October 29, 2001, that, after the students were disruptive, the Respondent put a sentence on the board, "I will pay attention," and required all of the students to write that sentence repetitively for approximately fifteen to twenty-five minutes. Some of the students had the ability to write the sentence only a few times or only once. This episode was in violation of instructions given by the principal at the meeting she had with the Respondent on October 23, 2001. The principal had a conference with Ms. Jones on October 23, 2001, in which Ms. Jones admitted that she had placed students in the bathroom for time-out for disciplinary purposes and that she had given children only five minutes in which to eat breakfast. She was informed that fifteen minutes were allowed for eating breakfast and she was directed not to use the bathroom for time-out disciplinary purposes anymore. She refrained from doing so thereafter. She was also directed not to withhold food from a child which she complied with thereafter, with the exception of the James Brown breakfast episode, which was adequately explained by the Respondent to not involve any disciplinary or disparagement reason for its occurrence. Ms. Jones did, as found above, violate the instruction from Ms. Davis about not requiring students to write sentences repetitively, as a disciplinary measure, by the incident she caused on October 29, 2001, found above. In summary, it is significant that the only sources of factual information are the testimony of the teacher's assistants who were assigned to the Respondent during the 2001- 2002 school year. An analysis of their testimony shows that none of them had any affection for the Respondent and it appears from examination of their testimony, and the Respondent's testimony, that each had specific reasons for harboring resentment or animosity toward the Respondent. Their attitudes towards the Respondent appeared less than friendly, so that their testimony, taken together, with the instances of admissions by the Respondent show that some of the situations described happened, but did not happen in the heinous way described in the testimony of the teacher's assistants Ms. Felton and Ms. Medlock. Although some of these situations, which occurred as part of the Respondent's attempt to properly deal with her classroom environment, may have justifiably resulted in criticism of the Respondent, the statement of the Petitioner's own witnesses show that there was no formal standard and no formal definition of acceptable versus unacceptable conduct imparted to the Respondent before she embarked on her duties with this EMH class. The Petitioner's representatives acknowledge that there was no advance training or instruction given to the Respondent. The Respondent was required to seek assistance and additional training largely on her own initiative with little support from the school administration. Consequently, as the Respondent attempted to develop techniques for the management of her classroom and for the instruction of her students, numerous events occurred that were later deemed inappropriate, although she had not been instructed in advance that they were inappropriate. Some of these occurrences or events were due to poor judgment on her part as well, and the resentment occasioned in her teacher's assistants or "para-professionals" was probably partly the result of her own failure to adequately control her temper on occasions. However, the fact remains that as soon as the Respondent was notified of any perceived inappropriate behavior, or classroom or student management techniques, she modified her conduct or techniques accordingly, so as to comply with those instructions. The only time she continued behavior that had been deemed unacceptable by the principal concerned the subject of the breakfast of one student, for whom she had a specific instruction from the student's parent that the student did not need to have breakfast when he arrived late, because he would already have had breakfast. The other occasion of continued behavior that was unacceptable was the single, October 29, 2001, requirement of students to write repetitive sentences, which was directly contrary to the instructions she received from the principal on October 23, 2001. Since the only complaints were made to the administration by the paraprofessionals and the investigation therefore concentrated on those individual's statements, there is no substantial, credible evidence that the Respondent's actions rose to the level of intentional embarrassment or disparagement of students or otherwise constituted a breach of the Code of Ethics for educators, as embodied in the rules on which the Respondent's termination was based. Although the Respondent's actions were mis-directed in several instances and constituted exhibitions of poor judgment on some occasions, they have not risen to the level of a violation of the ethical requirements imposed on teachers.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Duval County compensating the Respondent for the salary and benefits to which she is entitled from the date of her termination of employment (suspension without pay) forward to the end of the 2001-2002 School Year. DONE AND ENTERED this 14th day of November, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 14th day of November, 2002. COPIES FURNISHED: David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard Jacksonville, Florida 32207 Ernst D. Mueller, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street Suite 480 Jacksonville, Florida 32202 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issues to be resolved in this proceeding concern whether the Petitioner school board has good cause to reject the Walton County School superintendent's recommendation of Ann Farrior (Respondent) for renewal of an annual contract to serve in the position of school psychologist.
Findings Of Fact Ann Farrior was employed as a school psychologist by the Walton County School District for the 1998-1999 school year. She was employed on the recommendation of the superintendent and under an annual contract for that school year. Title 20, United States Code, Chapter 33, is known as the Individuals with Disabilities Education Act (IDEA). The intelligence testing and questions regarding assessment and placement of exceptional education students is governed by that federal statute and rules pendent thereto. The federal regulations implementing the IDEA provide certain federal funds to assist in their implementation by local school districts. The Walton County School District receives federal funding to implement the IDEA. The failure to comply with appropriate federal regulations governing testing, assessment and placement of exceptional education students can result in a loss of such federal funding for the District. The Superintendent, Mr. Bludworth, nominated Ms. Farrior for the school psychologist position at issue for the 1998-1999 school year with the understanding that although she was not certified as a school psychologist, she was eligible to be certified as such. During the course of her employment as a school psychologist that school year, state audit personnel determined that she was not properly credentialed to administer intelligence testing as part of the assessment process for exceptional education students, which is necessary to the formulation of Individualized Educational Plans (IEPs) which is in turn a necessary element of the ultimate decision of proper placement of such students in the educational system in a school district. In view of this situation, Mr. Sam Goff of the Bureau of Instructional Support and Community Services of the Department of Education wrote the superintendent on January 20, 1999, outlining specific requirements that the District would have to meet in order to bring itself into compliance with the IDEA as a result of Ms. Farrior's ineligibility to administer intelligence testing as part of the assessment and evaluation process for exceptional students. The superintendent also received notice by memorandum of January 28, 1999, and by letter of January 29, 1999, from the Auditor General's staff and the Auditor General (in evidence as Petitioner Exhibits 4 and 5), that audit findings had determined that the District employed a person as a school psychologist (the Respondent) concerning whom school district records did not indicate a basis for that person being qualified for the school psychologist's position. The Auditor General's findings noted that the position description for school psychologist employed by the school district included responsibilities for administering testing and assessing placement for all exceptional education students. The preliminary findings noted that the employee, the Respondent, then serving as a school psychologist possessed only a temporary Florida teaching certificate in "psychology" which had expired on June 30, 1998, and which did not constitute certification as a "school psychologist." District records did not show that the Respondent had renewed her teaching certificate or had otherwise met the minimum job requirements for the school psychologist position. The Auditor General recommended that the school district document its records with a basis upon which the individual, the Respondent, was determined to be qualified for the school psychologist position or to take appropriate action to provide for a licensed or certified school psychologist for administering testing and for assessing placement for exceptional students. As a result of receiving these communications and preliminary findings, the superintendent met with the Respondent and felt compelled to request her resignation. Nancy Holder had been the school psychologist in the position that Ann Farrior assumed. Early in the 1998-1999 school year, Ms. Holder, who is a certified school psychologist, had been transferred to the position of "Staffing Specialist" upon which occurrence Ann Farrior then occupied the position of school psychologist. Ms. Holder, in her testimony, described the duties of school psychologist as including, in addition to performing intelligence testing of students, testing for academic achievement, and personality testing as well as counseling duties involving students, their parent, and teachers. The school psychologist must also participate in staffing meetings and in the IEP formulation process and resulting decisions regarding placement of exceptional students; she must assist classroom teachers and parents with the particular problems involving both exceptional students as well as students who do not have exceptionalities or diagnoses. Because of the above-referenced preliminary audit findings by the Department of Education, Ms. Holder was required to assume the additional responsibility of supervising Ms. Farrior's activities for the remainder of her annual contract year as well as undertaking to re-test those students whom Ms. Farrior had previously tested. The school district alternatively obtained a consultant to perform the educational testing that otherwise would have been done by Ms. Farrior as school psychologist had she been qualified under the pertinent regulations to do so. The school district received a statement from the Department of Education's Bureau of Teacher Certification, dated March 22, 1999, concerning the Respondent's eligibility to apply for or to receive certification as a school psychologist. That statement of eligibility noted that the Respondent lacked 27- semester hours of graduate school credit in school psychology which would necessarily have to include six-semester hours of graduate credit in a supervised school psychology internship. Additionally, Ms. Farrior would have to submit a passing score on the state-required teacher certification examination. Ms. Farrior enrolled in an appropriate school psychology internship program for the 1999-2000 school year, but as of the date of the hearing in this case, she still lacked 24 of the required semester hours of graduate credit in school psychology and had not yet submitted a passing score on the Florida State Teacher Certification examination. The Walton County School Board has a written policy adopted August 13, 1996, and in force at times pertinent hereto which authorizes the superintendent "to select and recommended non-certificated instructional personnel for appointment pursuant to Section 321.1725, Florida Statutes, and State Board of Education Rule 6A-1.0502, when special services are needed to deliver instruction." Section 228.041(9), Florida Statutes defines the term "instructional personnel" as including "school psychologists." There is no showing in the evidence of record, however, that "special services" are needed to deliver instruction. That is, although the school psychologist position is statutorily deemed to be in the category of "instructional personnel" it does not involve the teaching of students. Rather the school psychologist position, which is the subject of this case, involves testing, evaluation, assessment, and assistance in the placement of exceptional students in appropriate courses of instruction. There was no showing that special services were needed to actually deliver instruction, as envisioned by the above-referenced written policy of the School Board concerning the appointment of non-certificated instructional personnel, such as Ms. Farrior. Given the above-referenced audit findings in relation to the controlling federal regulations referenced above and the Board's policy allowing employment of certificated personnel "out-of-field" only in cases where special services are needed to deliver instruction, it has not been demonstrated that the School Board realistically had an option, in the proper exercise of its discretionary authority, to hire Ms. Farrior "out-of-field" as a "school psychologist" based merely on her only certification, which was a temporary certificate authorizing the teaching of psychology (not certification as a school psychologist which is really a pupil support position). Moreover, the School Board's policy authorizes the employment of teachers for instruction in areas other than that for which they are certificated only in the absence of available qualified, certified instructors. Although the school psychologist position at issue remains unfilled, there is no evidence to demonstrate why it is unfilled and no evidence of record to demonstrate that there are not qualified, certified personnel available to be hired as a school psychologist to fill that position. When the superintendent recommended the Respondent for a second annual contract in April of 1999, he was already aware that she was not qualified to perform the duties of a school psychologist and that the District would have to contract with outside consultants or other qualified persons to at least secure the administration of intelligence and other psychological testing, which testing is a part of the job description and duties of a school psychologist. The then exceptional education director for the District, Ms. Rushing, had suggested to the superintendent that he recommend the Respondent in April of 1999 for the position of "evaluation specialist." This would more represent the actual duties Ms. Farrior had been performing after the Department of Education audit finding that she was not qualified to serve as a school psychologist. Unfortunately, however, there was no authorized position of "evaluation specialist" and the superintendent has no authority to set the qualifications for a particular position or a recommend a person for a position that had not otherwise been approved nor its qualifications approved of by the School Board. In summary, as of the date of the hearing, the Respondent was not yet eligible to receive either a regular or temporary certificate from the Department of Education as a school psychologist and still lacked 24 semester hours of graduate credit necessary for such certification; she had not yet passed the Florida State Teacher Certification Examination for school psychologist although she had secured and enrolled in an appropriate internship to satisfy the above-referenced six-hour internship requirement.
Recommendation Having considered the foregoing Findings of Fact, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Walton County rejecting the nomination of Ann Farrior to serve in the position of school psychologist for the school year 1999-2000, because good cause for such action has been demonstrated by a preponderance of the evidence in the manner found and concluded above. DONE AND ENTERED this 16th day of June, 2000, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 16th day of June, 2000. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 George R. Mead, II, Esquire Clark, Pennington, Hart, Larry, Bond, Stackhouse & Stone 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 John F. Bludworth Superintendent of Schools Walton County School District 145 Park Street, Suite 3 DeFuniak Springs, Florida 32433
Findings Of Fact The Petitioner, Ms. Ann E. MacPherson, is on continuing contract with the Monroe County School District, and has been a teacher for that District for 19 years. She started first as a physical education teacher in elementary school for one year, and next taught physical education for six or seven years in middle school. Subsequently she started having health problems, and on doctor's advice, switched to teaching something other than physical education. She switched to science. She had had no formal education to teach science, except for courses in her physical education degree. However, she is now certified in Science and Physical Education. For the past two years, the Petitioner has taught General Science and Health at Key West High School. In October 1981, Ms. MacPherson injured her foot on sharp glass. She was then a diabetic, and the injury failed to heal properly. Over the next several years, she had surgery nine times in one foot and seven times in the other foot. Her injuries caused her to require lengthy hospitalization and recuperation periods away from the class room. In the school year 1981-82, she was absent 60.5 days, in the year 1982-83, she was absent 74 days and in the year 1983-84 the Petitioner was absent 48 days. The school year is 180 days. During some of her periods of recovery, Ms. MacPherson was able to work in the classroom, but was not able to walk around the classroom due to her foot injuries. On the days that the Petitioner was absent from her classroom, she continued to supervise the work of the teacher substitute from her home. She continued to prepare the lesson plans, correct notebooks, make up the tests, grade tests, and help the substitute teacher through continuing contact. She asked for a substitute teacher by name to help with continuity of instruction. Ms. MacPherson taught Intermediate Science Curriculum Study (ISCS) initially in the middle school for six or seven years, and then at Key West High School since at least 1980, except for one year when she taught Health. The ISCS program placed special emphasis upon individualized learning. Students were expected to select science areas for investigation or experiment from a list prepared by the teacher, and then to progress at their own rate to conduct the investigation or experiment. Continuity of instruction by the same teacher was especially important for the ISCS course. Other teachers who taught the ISCS program were required to take a summer training course, but the Petitioner was not. The Petitioner received some informal training from Ms. Betty Cox, the school district curriculum coordinator. During the time that the Petitioner taught science at the middle school (Horace O'Bryant), she organized and used field trips as an instructional technique. She was unique among other teachers in this respect in the emphasis that she placed upon field trips, and the fact that she used her own car for transportation and paid expenses from her own pocket. Also while she was at Horace O'Bryant Middle School, the Petitioner applied for and obtained several small grants from the Department of Education for teaching environmental education. An administrator of these grants testified that only about one-half of those who apply are successful, and that the Petitioner's projects were very good. By the 1979-1980 school year, the Petitioner had transferred to Key West High School. Almost all of her students, if not all, were not headed for college. Typically these students were probably going to take jobs fishing, as clerks, or waitresses, after leaving high school, and were of average or less than average academic ability. Homer B. Herrick, Jr., was Chairman of the Department of Science at Key West High School for the school years 1979-80 to 1983-84, and in that capacity, was supervisor of the Petitioner. During the first two years, Mr. Herrick observed no significant problems with Petitioner's teaching. Mr. Herrick observed Petitioner in the classroom during these two years. He had routine lesson plan problems with the Petitioner, of a type that all teachers had, and found that the Petitioner was willing to implement his suggestions, and did so. In the school year 1979-80, the Petitioner received a performance evaluation, Petitioner's Exhibit 6. The evaluation was very good. Ms. MacPherson was praised for her extraordinary efforts to enhance her science program by use of field trips and slide/sound track presentations. The annual evaluation stated that she was a "dedicated instructor, who goes all out for her students." She was commended for "many extra hours" she spent to enhance her program, and the evaluation concluded that she "works well with other members of her department." Ms. MacPherson was criticized in two areas: coordination of field trips, and greater use of the guidance staff to control classroom discipline. These, however, were minor observations, as the evaluation concluded that "overall discipline is very good." The evaluation was signed by the Principal of Key West High School, Clarence Phillips, and was prepared by the Assistant Principal, Thomas Roberts. Mr. Roberts could not remember if his evaluation was based upon his own observations, or the combined observations of himself, Department of Science Chairman Herrick, and a Mr. Gallagher. During the school year 1980-81 Principal Phillips assigned Assistant Principal Roberts, Department of Science Chairman Herrick, and District Curriculum Coordinator Betty Towns Cox to conduct a series of classroom observations of the Petitioner to evaluate her teacher skills. The date is established by Petitioner's Exhibit 3, a letter from Alvin Burney, President, United Teachers of Monroe, to the Petitioner dated February 24, 1981. The date of February 1981 as the date of the first intensive observations was corroborated, apparently, by Ms. Cox's log of visits, which indicated she spent 14 hours in that month in the classroom observing the Petitioner with Mr. Roberts and Mr. Herrick. Transcript, p. 75. (The log is not in evidence.) Ms. Cox, however, placed primary emphasis in her testimony upon observations she made in the 1982-83 and 1983-84 school years. The Petitioner placed the observation period in the 1981-82 school year, Mr. Roberts could not remember if it was in the 1980-81 or 1981-82 school year, and Mr. Herrick placed the date of the observations in the 1981-82 school year. The written evidence of the date is better evidence than the conflicting memories of the witnesses. Department Chairman Herrick was one of those requested to conduct these observations. The observations were almost daily, and went on for about two weeks. To Mr. Herrick, discipline in the classroom was the primary problem. The observers were looking for a teaching deficiency as a potential cause of the discipline problem, but Mr. Herrick did not recall any problem with Ms. MacPherson's delivery of instruction. Mr. Herrick testified that after these observations, extensive plans were formulated for improvement, and these plans were discussed with the Petitioner. In the following months, there seemed to be less problem with discipline, and it was his opinion that the Petitioner had incorporated and implemented their suggestions. Assistant Principal Thomas Roberts also observed Ms. MacPherson during this period of intensive observations in the 1980-81 school year. Tee agreed with Mr. Herrick that the primary problem causing the observations was discipline in Petitioner's classroom. Mr. Roberts observed the Petitioner 5 to 8 times over a period of about a month. Each of the observations were for a continuous 2 to 3 hour time each day. He became "extremely concerned" about the lack of discipline maintained by the Petitioner in some of her classes. In the area of teaching, Assistant Principal Roberts was "pleased that she was making a strong effort in terms of not only the field trips and the slide series, but, you know, she was interested in any information that was given her by Mr. Herrick or Mrs. Cox in terms of her planning process, the things teachers need to do. And more importantly, her interaction with children, you know, she was concerned about that." Transcript, p. 135. Assistant Principal Roberts, however, felt that he was not competent to give an opinion as to Petitioner's competence in instruction, that Mr. Herrick and Ms. Cox were assigned at that time to evaluate that area, and that he himself focused primarily on the discipline issue. He concluded that the Petitioner at that time (1980-81) needed more training in classroom discipline skills. One of the causes of disciplinary problems that year was one student who caused many problems in one of the Petitioner's classes. The Petitioner had had the older brother of this student, and both were significant disciplinary problems. Mr. Roberts agreed that the Petitioner had more serious problems in one class in particular. Transcript, pp. 133-34. The Petitioner testified that the administration failed to help her discipline this one student. Transcript, pp. 164-65. However, it is clear from the testimony of Mr. Herrick and Mr. Roberts above that the Petitioner in general had problems disciplining her classes, and the problem was not confined to one student. In late 1980 and early 1981, Alvin Burney was President of the United Teachers of Monroe, and in that capacity he was contacted by Ms. MacPherson with regard to the evaluation process that had been instituted by Principal Phillips. Mr. Burney met with Principal Phillips, and Petitioner's Exhibit 3, a letter from Mr. Burney to Ms. MacPherson, summarizes what Mr. Burney says he heard from Mr. Phillips at that meeting. In the letter to Ms. MacPherson, Mr. Burney listed items which he said he would submit to Principal Phillips as suggestions for resolving these problems. The suggestions in the letter were apparently not implemented by Principal Phillips, except that the suggestion that fewer observations be conducted was implemented. At about the same time, Mr. Burney talked with the Superintendent, and the Superintendent told him that he had a list of teachers that were not, in his opinion, performing to his standards, and that he wanted to look at ways these teachers could be improved or be terminated. The Petitioner was one of these teachers. The Respondent objected to this testimony as hearsay, and lack of foundation: time, who said it, and so forth. The record contains an adequate foundation. Transcript, p. 114. The testimony is the testimony of an agent of the Respondent, and admissible as an exception to the hearsay rule. Section 90.803(18)(d), Fla. Stat. (1984). When the Petitioner testified, she misplaced the period of intensive observations as having occurred in the 1981-82 school year. As discussed above, other more credible evidence establishes the period as February 1981 in the 1980-81 school year. The Petitioner did not mention the problem of discipline in the classroom as a cause for the observations, but emphasized instead what she characterized as a misunderstanding at the beginning of the year as to what was expected of her in teaching the ISCS program that year. She said that at the beginning of the year, there was not enough money to buy equipment for physics, chemistry, and her ISCS course, and that with the knowledge and approval of Mr. Herrick and Ms. Cox, the Petitioner planned to present only one ISCS unit at the beginning of the year, to present more general science instruction, and then to present two ISCS units at the end of the year. But midway through the year, Mr. Phillips called her in and criticized her for not teaching the ISCS units, and started the observations by Herrick, Roberts, and Cox. The Petitioner said that apparently Mr. Phillips had not been told of the plans approved earlier by Cox and Herrick. Ms. MacPherson's position at the hearing was the same as that which she expressed in June 1981 as a response to her 1980-81 evaluation, and is credible. See paragraph A.1., attachment to Petitioner's Exhibit 5. At the end of the school year 1980-81 (May 20, 1981) Petitioner received her annual teacher evaluation, Petitioner's Exhibit 5. The evaluation was signed by Principal Phillips. The evaluation rated the Petitioner acceptable in only 3 categories. In the following categories the Petitioner was rated needs improvement:" preparation and planning, techniques of instruction, teacher-student and parents, and personal qualities. The Petitioner was evaluated as "unacceptable" in classroom management. However, Principal Phillips did not personally observe the Petitioner in the classroom that year, transcript, p. 217, and there is no other testimony in the record to support the conclusions of this annual evaluation, except classroom management, which was improved. Indeed, the testimony of Mr. Herrick and Mr. Roberts lead the Hearing Officer to conclude that Ms. MacPherson responded to the assistance and evaluations that occurred on an intensive basis, and made suitable and adequate improvements. Based upon all of the foregoing, it is the finding of the Hearing Officer that the Petitioner ultimately performed her job adequately for the 1980-81 school year, but that she had had significant disciplinary problems during the school year, which she was able to improve by the end of the year. At the beginning of the next school year (1981-82) following the year in which intensive observations had been conducted, the Petitioner made a special effort to request the assistance of Department Chairman Herrick to develop her lesson plans. The Petitioner wanted to avoid the problems she had had the previous year. In October of 1981, as discussed above, Ms. MacPherson injured her foot, and her serious medical problems began. She was absent 60.5 days during the 1981-82 school year. During the times she was able to attend class that year, her infected feet were open and draining, and standing aggravated her condition. At some time during that school year, Principal Phillips suggested that Ms. MacPherson take a medical retirement. Ms. MacPherson again contacted Mr. Burney, and Mr. Burney, on her behalf, wrote a letter dated February 22, 1982, to Mr. Phillips. It was Mr. Burney's position at that time that in his conversations with Mr. Phillips the year before, Mr. Phillips had agreed to "make arrangements during pre-planning of this school term to outline detailed expectations" for the Petitioner, and this was not done. The letter further stated, on behalf of the Petitioner, that it was the Petitioner's contention that since no more observations had been scheduled, the deficiencies complained of in the previous year had been corrected. At the end of the 1981-82 school year, the Petitioner again received her annual evaluation signed by Mr. Phillips. Mr. Phillips did not personally observe the Petitioner, and the record does not contain any other competent evidence, either pro or con, concerning Ms. MacPherson's performance that year. Neither Mr. Herrick or Mr. Phillips testified specifically about her performance that year, and Ms. Cox's testimony cannot be adequately dated as pertaining to that year. The 1981-82 annual evaluation rated the Petitioner "acceptable" in the following area in which she had been rated "needs improvement" the year before: preparation and planning, professional responsibility, and relationship with staff and parents. Her grating in classroom management, which had been unacceptable in 1980-81, was rated acceptable. Ms. MacPherson was rated "needs improvement" in techniques of instruction and teacher-student relationship, which was the same rating in these categories as the prior year, and was rated unacceptable in personal qualities. Mr. Phillips commented in the evaluation that "although she says she wants to teach, I feel that her physical health is of an extremely serious nature and the suggestion of medical retirement should be reinvestigated." Respondent's Exhibit 1. The Petitioner attached a general rebuttal to the evaluation, simply disagreeing with critical ratings therein. It is the finding of the Hearing Officer from the foregoing that the Petitioner performed her duties adequately during the 1981-82 school year, except that her injuries caused her to miss a substantial number of classroom days, and her performance was impaired by her injuries. During the 1982-83 school year, as discussed above, Ms. MacPherson continued to have serious health problems with her feet. She was absent from school 74 days. In November 1982, she wrote to her Principal to try to schedule surgery and arrange for a permanent substitute so that the substitute, who she suggested by name in her letter, would provide some continuity of instruction for the students in the ISCS program. In preparation for this lengthy absence, Ms. MacPherson set up all the teaching units and day by day lesson plans for her substitute to follow, and prepared instructions for finding the equipment, how to use it, and how to monitor student use. She went over these plans with the substitutes assigned to her. But her hospitalization continued for longer than planned, and during this period she continued to make lesson plans at the hospital, to correct all the tests, correct notebooks, average grades, have frequent discussions of teaching with the substitute, and do the work she could do in the hospital or at hone. All of this work she did without pay because she was then on leave with pay, having exhausted her sick leave. During both the 1982-83 and 1983-84 school years, Ms. Cox, the school district curriculum coordinator, at the request of Principal Phillips, worked with the Petitioner on her lesson plans on a number of occasions. Ms. Cox also observed the Petitioner's performance in the classroom. Ms. Cox estimated that her observation periods lasted from as short as ten minutes to as long as a full hour, and that during the 1982-83 school year, she visited Petitioner's classroom about six times per month. Petitioner's counsel attempted to impeach Ms. Cox's testimony by cross-examination from logs prepared by Ms. Cox which recorded classroom visits she had made. The resulting record does not impeach the evidence provided by Ms. Cox. Much of the transcript simply consists of counsel's characterization of the logs, not testimony of a witness, and the logs were not offered into evidence. Further, it appears that the logs covered the period from 1980 to June 25, 1982, which is a period largely irrelevant to Ms. Cox's period of observations. Transcript, pp. 77, 76-77. Ms. MacPherson testified that the only times she remembered being observed by Ms. Cox was in 1976 and "when Mr. Phillips asked her to on that extensive evaluation." Transcript, p. 161. Ms. MacPherson placed the period of intensive observations, at the request of Principal Phillips, as the school year 1981-82. Transcript, pp. 173-75. At other times, the Petitioner testified that Ms. Cox did not stay in the classroom to observe her, but only beckoned her to come to the door, or visited in some other way so as to not disrupt the class. With respect to lesson plans, Ms. Cox's testimony did not disparage the Petitioner. Ms. Cox testified that she worked on lesson plans with the Petitioner, and that the end result contained some of her suggestions and some of the Petitioner's. Transcript, p. 42. The Hearing Officer concludes from this testimony that the Petitioner functioned adequately in collaboration with Ms. Cox on lesson plans, and had a good attitude in the process. Ms. Cox criticized the Petitioner in the classroom for failing to be "up and moving around, acting as a facilitator . . ." and testified that as a result, she observed a number of students not doing science. Transcript, p. 43. From this Ms. Cox stated her opinion that since the State now requires 72 hours of laboratory cork in science class, that "it would be very, very difficulty for a teacher as inactive as Ms. MacPherson to do seventy-two hours of lab work." Transcript, p. 45-46. In the same vein, she testified that the Petitioner would need a "tremendous" amount of training to be effective in the new science program. Transcript, p. 57. On cross-examination, Ms. Cox was asked specifically to state the factual predicated for her opinion. In addition to the question of moving about the room, Ms. Cox mentioned "facilitating" and "delivery of instructions." Transcript, p. 59. Ms. Cox defined "facilitating" to mean moving around the classroom, observing and instructing, so that concept was simply a short-hand way of combining the concept of motion, observation band delivery. Transcript, p. 59. Ms. Cox's criticism concerning delivery of instruction was that she said that the Petitioner delivered instructions only once, and that repetition was needed. Transcript, pp. 59-60. But when asked whether she had had enough day to day observation of the Petitioner to say "for a fact that her delivery was one shot," Ms. Cox admitted "no, I did not observe that frequently, but we talked about it." Transcript, p. 60. When asked to say whether she talked about it frequently, Ms. Cox testified: "I don't know if I said several occasions, or that we talked about it." Id. Thus, Ms. Cox did not have a sufficient basis upon which to concluded that Ms. MacPherson had any problems with delivery of instructions. With regard to the problem observed of students not on task, and Ms. MacPherson's failure to move around the room, Ms. Cox's opinion was not reliable for two reasons. First, she denied that average and less than average students would be expected to be less on task in an individually motivated science program than above average students. Transcript, p. 66. This is contrary to common sense and indicates that Ms. Cox did not have an adequate appreciation of the problems of teaching a science curriculum that depended substantially upon self-discipline and self-motivation. Further, Ms. Cox was aware that Petitioner's physical mobility in the classroom was significantly impaired due to her foot injuries, transcript, pp. 51-52, but she failed to evaluate how much of the "immobility" and "inactivity" of Ms. MacPherson was due to her feet, and how much may have been due to lack of teaching skills or motivation. Ms. Cox's opinion that Petitioner would have difficulty teaching the new science course because it requires 72 hours of laboratory work also appears not reliable. The ISCS program is no longer in existence at Key West High School, and the Petitioner would be required to teach a more traditional science course having 72 hours of laboratory work. Ms. Cox made no distinction between the ISCS individual laboratory curriculum and the new 72 hour requirement, but that is facially not reasonable. Since the new science program is no longer individualized study, then the 72 hours of laboratory work would also not be individualized. Thus, it would be much easier to teach this laboratory work because all students would probably be involved in the same laboratory experiment during the class period, and would not be able to choose individual experiments. Finally, Ms. Cox significantly limited the usefulness of her opinions by stating that she saw her role as one of assisting the Petitioner only, and not a responsibility for rigorous professional evaluation. She explicitly admitted: "I did not evaluate Ms. MacPherson. . . ." Transcript, pp. 47-48 (E.S.). For these reasons, Ms. Cox's opinions that the Petitioner was an "inactive" teacher, that she had problems with delivery of instruction, that she did not move among the students enough, and that she could not successfully teach the new science curriculum, are rejected as not being based upon sufficiently reliable evidence. On of the reasons given to Ms. Cox for taking steps to help the Petitioner was that parents had complained about the instruction of science by the Petitioner. However, since the complaints mentioned in the record were not complaints made personally to Ms. Cox, such purported complaints are hearsay within hearsay. Transcript, p. 50. As such, no finding can be made that such complaints in fact were actually made. The finding contained in the first sentence of this paragraph, however, can be made. Ms. Cox testified that by being absent sixty days or more in a one hundred eighty day school year, the Petitioner could not have provided her students with a minimum educational experience. Transcript, p. 45. Ms. Cox's opinion explicitly assumed that "the students had to miss a lot of instruction, because a substitute teacher could not just walk in and teach that program." Id. (E.S.). But Ms. Cox's opinion was not based upon an actual evaluation performed by Ms. Cox, but rather was based upon her generalized opinion drawn solely from the absences of Ms. MacPherson. Transcript, p. 56. Ms. Cox admitted that she did not test Ms. MacPherson's students to discover the actual educational level achieved, and that she had no objective criteria for her opinion. Id. Further, there is no evidence that Ms. Cox observed the degree to which Ms. MacPherson had supervised her substitutes, and the quality of instruction provided by the substitutes. For these reasons, Ms. Cox's opinion that Ms. MacPherson failed in fact to provide a minimal educational experience for her students is not sufficiently reliable as a basis for that finding. The fact that Ms. MacPherson candidly admitted that her students would have been better served had she not been absent so much, transcript, pp. 21, 25, does not support the conclusion that she failed to provide a minimal educational experience. At the end of the 1982-83 School year, the Petitioner received her annual evaluation, Respondent's Exhibit 2. She was evaluated as needing improvement in 2 of 8 relevant categories concerning classroom management, was evaluated as needing improvement in 2 of 5 relevant categories in delivery of instruction, needing improvement in the 1 relevant category of assessment techniques, and needing improvement in 6 of 11 relevant categories of professional characteristics. Principal Phillips emphasized the number of absences that Petitioner had had during the school year and her future health in the comments section. The evaluation was signed by Mr. Phillips, but he did not observe the Petitioner in the classroom during that year. At the end of the evaluation, Ms. MacPherson asked to be allowed the opportunity to submit a rebuttal if the criticisms in the evaluation were directed at her teaching skills unassociated with her illness and injuries. That question was not answered by the Respondent, and the Petitioner did not submit further rebuttal. In the pre-planning stages before the beginning of the 1983-84 school year, Ms. MacPherson contacted her Departmental Chairman, Mr. Herrick, and told him that she felt she was on unfirm ground, and that she wanted to be sure that she fulfilled what was expected of her. At that point, Mr. Herrick was no longer making observations of Ms. MacPherson, but he did look over her lesson plans a few times at that time, and he concluded that her lesson plans were satisfactory. Mr. Herrick sought to explain why he was no longer observing and evaluating the performance of the Petitioner at this time by stating that he had "conflicting duties" as a department chairman, wherein he was supposed to help teachers, and he felt it would have been difficult for him to make judgements in a "dismissal type situation." Transcript, p. 145(a). There was no other explanation for Mr. Herrick's departure from his expected normal role as direct supervisor of Ms. MacPherson. It must be concluded from Mr. Herrick's apparent exit from evaluative responsibilities and his excuse that he was too close to the Petitioner to participate in a "dismissal type situation" that by the fall of 1983, a decision had been made to actively pursue evaluation aimed at dismissal of the Petitioner. Nicholas A. Fischer, Director of Human Resources for the Respondent, is responsible in part for professional development and training of teachers, and other duties as assigned by the Superintendent. Dr. Fischer holds a Doctorate in Administration, Planning, and Social Policy from Harvard University. In September 1983, Dr. Fischer was requested by Principal Phillips to observe and evaluate the teaching skills of the Petitioner. Prior to conducting these evaluations, Dr. Fischer had no prior training or knowledge of the curriculum of the ISCS program, and to provide himself with some basis for conducting the evaluations, Dr. Fischer telephoned Dr. William Snyder by telephone. Dr. Snyder is a professor of science education at Florida State University and was one of those involved with writing the ISCS program. From this telephone conversation, Dr. Fischer developed the teaching standard for evaluating the Petitioner. Dr. Fischer conducted his first evaluations on October 13 and 14, 1983. The time spent in observation of the Petitioner was three class periods. Transcript, p. 95. Dr. Fischer was accompanied on at least one of these observation periods by Principal Phillips. At the end of the observations, Dr. Fischer and Principal Phillips prepared the observation form, Respondent's Exhibit 6. Dr. Fischer testified that he observed the Petitioner observing student activity and behavior from the front of the room and by walking around. He criticized her for not discussing with students the tasks on which they were working. At the beginning of the period, the Petitioner told the students to continue on the individual work they had been doing the prior day. Once they completed those tasks, the students were told to begin new work to be chosen by them from a list on the board. After class began, Dr. Fischer noted that the Petitioner failed to discuss the progress of work with individual students, and did not ask students to explain what they were doing, what they intended to do next, and whether they were having problems. Instead, the Petitioner stood in front of the room, or walked around, looking at student work and monitoring behavior, but not orally instructing. Dr. Fischer further testified that the Petitioner did not actively check the students at the beginning for comprehension of her instructions, and did not explain to the students what was expected in their work. Expectations that Petitioner should have communicated to the students included the amount of time to spend on the task, the process to be used to obtain help, and how the students were supposed to work on particular tasks. Dr. Fischer concluded from his observations that the Petitioner did not adequately instruct students at the beginning of the class, and did not adequately instruct student activities during the class. The observation form, Respondent's Exhibit 6, contains additional areas thought by Dr. Fischer to be deficient in Petitioner's teaching. The form mentions a failure to make objectives in lesson plans more specific, activities matched to objectives, and methods of evaluation both made more specific and correlated with objectives and activities. He concluded that it was difficult to determine if lesson plans were followed due to vagueness. In one period, Dr. Fischer observed 50 percent of the students on task 60 percent or less of the time. With regard to behavior of students and professional attitude interacting with students, Dr. Fischer found that the Petitioner needed to be firmer, consistent, and interact in a way that defined what was expected, minimally involving other students. He found that the interactions with students were more confrontations than conversation, and statements were made to the entire class when only the behavior of a few was to be corrected. At the end of the two days in which observations were conducted, Dr. Fischer net with the Petitioner and discussed the contents of his evaluations contained in Petitioner's Exhibit 6. Next, Dr. Fischer developed a professional development plan, which is Respondent's Exhibit 7. The plan follows the topical categories contained in the observation form. The plan sets forth a number of goals to be accomplished by the Petitioner to remedy the matters criticized by Dr. Fischer in the observation form. Dr. Fischer discussed the plan with the Petitioner and scheduled another observation for December 1983. The professional development plan called for daily evaluation of each student's progress. The Petitioner found that daily evaluation was too time consuming and not effective, since students did not make enough progress each day to make evaluation meaningful, and also because there was not enough time each day to both instruct and evaluate each student. Transcript, 185-86. This was corroborated by Respondent's Exhibit 6, which indicates that a class period was about 60 minutes, and Petitioner had 13 students in the third period. While 13 students in a single class is a very small number compared to typical classrooms, it still allows perhaps 10 minutes at the beginning for general instruction and getting out equipment, 10 minutes at the end for equipment storage and summation, and only 180 seconds per student for the remaining 40 minutes in which to monitor behavior, instruct, observe, and evaluate. The Petitioner discussed with Ms. Cox the requirement of daily evaluation, and Ms. Cox told the Petitioner that she agreed that daily evaluation was not possible, but that the Petitioner should try to satisfy "them" (Dr. Fischer and Mr. Phillips) and do it that way for two or three weeks, and then when the period of Scrutiny was over, to go back to doing it the way she had done before. Transcript, pp. 185-86. (As testimony relating that Ms. Cox is fact said these things, the foregoing is not hearsay. To the extent that Ms. Cox's opinion is in the record to corroborate the Petitioner's own opinion that daily evaluation was impossible, it is hearsay, as such, may be relied upon as corroborative of direct evidence on the point). The professional development plan also called for the Petitioner to observe other teachers teaching laboratory science courses in "classes identified by the Principal." Respondent's Exhibit 7, p. 3. Apparently the Petitioner was given the name of one teacher in her own school who taught laboratory science (but not ISCS, since that program had been discontinued), but was not given the names of other teachers in other schools to observe as promised. Further, she was never told when she could be released from her classes to observe these teachers. Transcript, pp. 178-79. Thus, it was impossible for her, on her own, to leave her classes to follow up on these observations. (Dr. Fischer's testimony, which only asserts that "resources" of an identified nature were "suggested" does not contradict Petitioner's testimony. See transcript, p. 100). Other than the matters discussed in the last two paragraphs, the Petitioner was responsible, on her own initiative, to implement all other aspects of the professional development plan. The Petitioner did not ask Dr. Fischer for any help with implementation of the professional development plan, transcript, p. 106, but she did ask for help from Ms. Cox, transcript, p. 187. Dr. Fischer recognized that after a teacher had been evaluated and instructed on areas needing improvement, that the teacher should be afforded a period of time to implement the suggestions. Transcript, pp. 98-99. He estimated that a minimum of a month would be needed to afford a teacher a reasonable period of time to become more specific in plans for instruction, and would need two or three months for some aspects of classroom management. Transcript, p. 99. Other corrections, such as announcing a rule in class, he thought should require only a week to correct, and others, such as stopping fights immediately, should be implemented the next day. Transcript, pp. 98-99. To improve rapport with students, a teacher needed at least two months for implementation. Transcript, p. 99. Applying Dr. Fischer's expectations to the professional development plans, Respondent's Exhibit 7, the development plan consists almost entirely of goals for improvement that would require one to three months to correct. The professional development plan lists goals and objectives stated in broad terms falling within the categories discussed in paragraph 45 above: development of more specific lesson plans, general principles for improving classroom management, and for improving rapport with student. A few of the objectives of the development plan (delivery of instruction, paragraphs 4 and 5, classroom management, paragraphs 1 and 5) would probably be such that it would be reasonable to expect correction and implementation in a few days. But overall the development plan states that implementation of the various sections were to have been accomplished by either December 1, 1983 (five weeks) or January 1, 1984 (nine weeks). At some point between October 26, 1983, when the professional development plan was discussed with and signed by the Petitioner, and December 1983, the Petitioner again became ill due to her feet. The scheduled second observation thus did not occur in December, but occurred on "change-over" day in January, 1984. Change-over day is apparently the day when the second semester begins, and is a day when the skills of a teacher in explaining new material and setting new directions for a class are more extensively tested and required. While it is not a normal teaching day, it is a suitable day to observe a teacher's skills under stress. At the end of the observations that day, Dr. Fischer concluded that the Petitioner had not made significant improvement since his evaluations in October. He felt that some improvement had been made in lesson plans, but still was not satisfied that the plans were sufficiently specific. He gave no examples, however. He said he was still "not clear" on the relationship between the techniques used for evaluating student performance and the objectives for student performance on a given day. And he expressed continued concern for clarity of directions in the classroom and the amount of time students were expected to be on task. Transcript, p. 87. Dr. Fischer's evaluation in January 1984 was based solely upon the observations in the classroom made on that day, and was not based upon observations of or knowledge of the steps that the Petitioner took to improve during the interim. Transcript, p. 88. Dr. Fischer knew that the Petitioner was absent during the period from October 1983 to January 1984, but he did not know the exact number of days of such absence. Transcript, p. 100. Dr. Fischer testified that it would probably not make a difference in his January 1984 evaluation if Ms. MacPherson had been absent due to illness for the majority of the time from the date of the first observations and the beginning of the professional development plan. Transcript, p. 101. In both the October 1983 evaluations and the January 1984 evaluation Dr. Fischer concluded that the Petitioner was not an effective or a competent teacher. Dr. Fischer was of the opinion that he had had an adequate amount of time to observe the Petitioner to develop the above opinion, but that "normally" he would have hoped to have had more time. The students in the Petitioner's ISCS classes were average and below average in skills and intelligence. Ms. Cox did not think that this factor was relevant to her assessment of Petitioner's teaching skills. Dr. Fischer felt Use factor was relevant, and was of the opinion that such students could be taught effectively only by a "highly skilled teacher." Transcript, p. 105. Ms. Cox's failure to consider the skill level of the students in the ISCS science course, with its total emphasis upon learning through self- discipline and self-motivation, severely undermines her credibility as an evaluator of the Petitioner. Dr. Fischer's opinion that only a highly skilled teacher could teach average or below average students in the ISCS science program is accepted as credible. Continuity of teaching by the same teacher is important for proper instruction of students. Unless the teacher is present continuously with the same students, he or she has no adequate way to judge the progress of the student, and from that evaluation of progress, tailor future instruction. Continuity of instruct ion was especially important in the ISCS program because students were not lectured and given the same homework, followed by testing, but progressed at different rates based upon individual choice. With respect to the school years 1981-82, 1982-83, and 1983-84, based solely upon the absences of the Petitioner, it was Dr. Fischer's opinion that the Petitioner could not deliver a minimum educational experience to her students. Transcript, pp. 89-90. Like Ms. Cox, this opinion was not based upon actual testing of students who were taught by Ms. MacPherson in those years, but was based rather upon inferences drawn from the absences themselves, coupled with Dr. Fischer's own expertise. Mr. Herrick also addressed himself to the issue of the Petitioner's absences. He testified that due to the great length of the Petitioner's absences, he had to use several substitutes since there was a rule limiting the time that one substitute could be used. He testified that use of several substitutes resulted in substitutes not always familiar with the materials and student progress, and that he passed by the classroom frequently and could see that the class was "rather chaotic." Transcript, p. 148. Hut Mr. Herrick did not attribute this fact to a lack of skill by Ms. MacPherson: he stated that it would happen to any teacher who had been absent so long. Id. Due to the fact that Dr. Fischer and principal Phillips were faced with a deadline of February 1984 in which to decide whether to recommend to the school board that the Petitioner be returned to annual contract, he and others had to make a decision shortly after the January 1984 observations. Transcript, p. 104. On February 29, 1984, the Superintendent, A. J. Henriquez, wrote to the Petitioner stating that he would recommend to the school board that the Petitioner be returned to annual contract for the school year 1984-1985. Respondent's Exhibit 9. The purpose of returning the Petitioner to annual contract would be to provide her time to improve, and to terminate her if she did not improve. Transcript, p. 107. The Respondent would be legally free to terminate a teacher on annual contract without cause simply by failing to renew the annual contract at the end of one year. In the two previous years, Mr. Phillips wrote to the Petitioner warning that he might recommend that she be returned to annual contract. On April 30, 1982, Mr. Phillips wrote suggesting medical retirement and warning he would recommend return to annual contract if the Petitioner's attendance did not improve. Respondent's Exhibit 4. On March 14, 1983, Mr. Phillips stated that he planned to recommend that Ms. MacPherson be returned to annual contract. Respondent's Exhibit 8. This recommendation, however, was held in abeyance for another year. Respondent's Exhibit 5. In both 1982 and 1983, the basis for the proposed return to annual contract was solely Petitioner's attendance problems, and was not based in upon any claim that the Petitioner lacked teaching skills. In view of the foregoing history of contemplation of return of the Petitioner to annual contract, it is very likely that if the Petitioner is returned to annual contract, her contract will not be renewed at the end of the annual term. Mr. Phillips signed the Petitioner's annual evaluation for the school year 1983-84. The evaluation does not rate the Petitioner unacceptable in any area, but rates her as needing improvement in preparation and planning, classroom management, techniques of instruction, assessment techniques, professional responsibility, school contributions, and personal qualities. The Petitioner was rated acceptable in knowledge of subject matter, teacher-student relationships, and relationships with staff and parents. Evidently due to the fact that no one provided Petitioner with a copy of the evaluation or asked her to sign it, and because the Petitioner was not present at school after school ended that year, the Petitioner did not see the evaluation, and thus it was not then (apparently) discussed with her. Transcript, p. 34. During the 1984-85 school year, the Petitioner took leave of absence without pay to try to heal her feet completely. The last surgery was in October 1984, and since then her feet have been healing well, without flare-up. The Petitioner testified that her feet were now completely healed, and she would be able to walk around a classroom without endangering her feet or her health. She further testified that her doctor felt her feet were healed. Transcript, p. 189. (While this is hearsay, it is corroborative of the Petitioner's own testimony concerning the condition of her own feet, and may be relied upon for that purpose.) The Respondent did not introduce any rebuttal or contradictory evidence as to the current condition of Petitioner's health. The Petitioner will have a lower salary if the Respondent changes her contract from continuing to annual status. The parties have proposed a number of findings of fact, many of which have been considered and are a part of the findings above. The following proposed findings of the parties are considered separately: Finding number 20 proposed by the Petitioner is rejected in part. Mr. Burney's opinion as to the Petitioner's competence as a teacher is rejected for lack of a predicate to show that Mr. Burney had observed the Petitioner as a teacher and had the competence to form such an opinion. To the extent that his opinion was based upon conversations with Mr. Herrick and Mr. Roberts, findings have already been made as to their opinions, and Mr. Burney's reiteration of what they said is cumulative and adds nothing to the record. See also ruling at page 123, transcript. The Petitioner's failure to remember what the initials "ISCS" stood for, which is Respondent's proposed finding 6, is largely irrelevant. That failure might have been relevant had it been the only such event in the record. But since counsel for the school board, Ms. Cox, and Dr. Fischer appear to also disagree as to what the letters mean (compare Respondent's proposed finding 6; transcript, p. 42; and Respondent's Exhibit 7, p. 1), the only finding that could possibly be justified is that there is disagreement among the witnesses who were professionally involved with the administration, evaluation, and delivery of the ISCS curriculum. Finding number 20 proposed by Respondent concerning complaints by parents and students is rejected. No parents or students testified. Neither did Principal Phillips. This is hearsay upon hearsay. Respondent's proposed finding 39 proposes a finding that Ms. Cox rendered an opinion that Petitioner was not providing a minimal educational experience for students "based upon her observations and experience," citing the transcript, page 45. Ms. Cox did not respond based upon her "observations." The question asked was "in light of your experience and background and education." Thus, the opinion, as discussed above, was a generalized opinion based solely upon a stated general number of absences. Ms. Cox was not asked to render an opinion based upon her observations of Ms. MacPherson, and the proposed finding is rejected to that extent. With respect to Respondent's proposed finding 46, Petitioner did testify that most students who missed from sixty to seventy-four days out of a school year of 180 days would not receive a minimum educational experience. The Respondent did not show, however, whether the absence of Ms. MacPherson was the equivalent to total absence of the students themselves for those days, and thus the finding is only of marginal relevance. It has been the intent of the Hearing Officer to explicitly comment upon every proposed finding of fact unless such proposed findings are cumulative, subordinate, or unnecessary. If a finding is immaterial, it is the intent of the Hearing Officer to have explicitly identified such finding as immaterial.
Recommendation For these reasons, it is recommended that a final order be entered that good and sufficient reasons do not exist to return the Petitioner, Ann E. M, to annual contract. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM C. SHERRILL, JR. 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 10th day of May, 1985. COPIES FURNISHED: Thomas W. Young, III, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Michael Casey, III, Esquire 2 South Biscayne Boulevard Suite 1800 Miami, Florida 33131 A. J. Henriquez, Ph.D. Superintendent The School Board of Monroe County, 242 White Street P.O. Drawer 1430 Key West, Florida 33040-1430 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact At all times material to this case, Respondent was a School Board charged with the duty to operate, control, and supervise all free public schools within the Dade County school district. Such authority includes, but is not limited to, the employment of appropriate staff for the Dade County schools. Geographically, the Respondent's district covers a span of approximately seventy-eight miles. Petitioner is an unmarried 41 year old male citizen of the United States of America. In August of 1992, Petitioner applied for a teaching position with the Office of Personnel Staffing (the personnel office) in the Dade County school system. The personnel office is responsible for staffing instructional staff: teachers and teacher's aides. The personnel office receives approximately fifty thousand applications annually from individuals seeking employment with the Respondent. Many of the applications are for employment as teachers for the Dade County school system. The personnel office hires approximately three to four thousand people a year. Of that number, approximately two thousand people are hired as teachers. The operational procedures of the personnel office regarding the application and hiring process for teachers are set forth in the instructions for completing the teacher application package. The instructions are in the front of the application package. Completion of the teacher application process requires that all applicants submit a completed application package, including the submission of all official transcripts. An applicant's official transcripts are always required; all teacher applicants must submit these documents to the personnel office. In this case, Petitioner signed the application package attesting to the fact that he received the package in its entirety. Petitioner was familiar with all of the contents of the application package, including the instructions to the application package. Before submitting his application package to the personnel office, petitioner knew or should have known that official transcripts were a required portion of the application package. Petitioner failed to provide the personnel office with his official transcripts when he submitted his application package. Official transcripts are required to avoid the submission of transcripts that reflect altered and/or forged grades and subject areas. Additionally, the submission of official transcripts facilitates the analysis of the applicant's individual subject performances, possible secondary areas of certification, and additional experiences, subjects or classes that may enhance or decrease the written assessment of the applicant. Examination of an official transcript is the only reliable available means of receiving the information. The personnel office does not seek an applicant's official transcripts, nor does the office have the authority to request such documents from the Florida Department of Education. Official transcripts are confidential documents and once submitted to the State such documents will be released only to the applicant once the applicant's file has expired. Additionally, the Board does not have the capability, nor is it required, to confirm or cross reference the existence of an applicant's official transcript with another agency for purposes of assessing the applicant's qualifications. All applicants seeking employment as a teacher with the Board must meet the application criteria established by the personnel office. All of the requirements for completing an application package are chronicled in the instructions to the application package. Once an application is received, the personnel office has a standard procedure of immediately reviewing an application to verify that it is complete. In this case, Petitioner's application was deemed incomplete because it lacked Petitioner's official transcripts. Based on the preceding, Petitioner's application was not processed. Because the application was not completed, Petitioner was not eligible for employment. An applicant may call for an appointment for an interview after the applicant has submitted a completed application package and the applicant's file is processed. If the applicant's file is not completed and processed, the applicant cannot be scheduled or considered for an interview. The personnel office did not interview Petitioner because his application was incomplete and unprocessed. The only reason Petitioner was not interviewed was because his application was incomplete. No other factor influenced this matter. The Petitioner's marital status did not impact the decision to deem his employment application incomplete. The Board does not take issue with employing single men. Other than Petitioner's complaint, the Board has not received a charge of marital status discrimination in the last ten years. Staff from the personnel office spoke with Petitioner regarding his incomplete application package. The personnel office offered to assist Petitioner. Petitioner was advised that if he furnished the personnel office with his original set of official transcripts, that Dr. Garner would personally copy his originals, attest to their authenticity, return the originals to Petitioner, and proceed with Petitioner's interview (presuming the transcripts were as Petitioner represented). Petitioner never submitted the official transcripts for review and copying. Additionally, Petitioner did not seek a certified copy of his records from the Florida Department of Education. Only at the hearing was Petitioner willing to allow his set of the official transcripts to be reviewed. A statement of eligibility or certification from the Florida Department of Education does not make an applicant automatically qualified for, and entitled to, a teaching position with the Board. Completion of the teacher application package also includes the submission of a completed W-4 tax form. The information solicited on a W-4 form is not considered or even reviewed by the personnel office when they assess an applicant's credentials and overall qualifications for employment. The personnel office does not use a W-4 form to screen applicants by marital status. Additionally, the personnel office requests the tax information, along with other information, before the actual date of hire, in order to avoid operational delays. Past experiences have demonstrated that it is inefficient and impractical to have a newly hired employee mail the W-4 form to the wage and salary office after the individual's actual date of hire. The personnel office processes the paperwork but does not hire teacher applicants. The office is a clearing house that gets applicants ready for hire. The actual hiring of an applicant occurs at a school. The application procedures and all of its requirements have been in effect for approximately thirteen years. The application procedures and all of its requirements are essential in order to facilitate the procedure of hiring the most qualified personnel, regardless of their marital status. It is also essential in order to expedite the process for providing newly hired employees with immediate compensation and benefits. Administrative procedures, regulations, directives and guidelines are permissible methods of implementing School Board policies. The Board received notification from the EEOC that Petitioner had filed a charge of sex and marital discrimination against the School Board. On May 23, 1995, the EEOC issued a letter of determination as to the merits of Petitioner's allegations of sex and marital status discrimination, finding, in pertinent part, that Examination of the evidence of record shows that (Petitioner) was not considered for any position because he failed to submit all the material required with the application. Evidence further shows that all applicants must submit the required material to be con- sidered for vacancies. The (Petitioner) was unable to provide and the Commission's inves- tigation did not disclose any evidence which would show Respondent considered the (Petitioner's) sex or marital status when reaching its decision.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint against the Dade County School Board. DONE AND ENTERED this 11th day of June, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 11th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-5316 Rulings on the proposed findings of fact submitted by the Petitioner: None submitted. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1, 2, 3, 4, 6, 8, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 21, 22, 23, 25, 27, 29, 30, 33, 34, 35, 37, 50, and 54 are hereby accepted and adopted by reference. Paragraph 5 is accurate but irrelevant to the resolution of the issue of this case. Paragraphs 19 and 20 are accurate but unnecessary to the resolution of the issue of this case. Paragraphs 24, 26, 28, 31, 32, 36, 38, and 44 are accepted. All other paragraphs not listed above are irrelevant. COPIES FURNISHED: Heidi N. Shulman, Esquire School Board of Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Steve J. Longariello 9999 Summerbreeze Drive, Number 422 Sunrise, Florida 33322 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Building Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Building Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent, Mary L. Martin, has been a Gadsden County school teacher with a continuing contract of employment since August 18, 1967. For almost all of her teaching career, the Respondent has been a full-time elementary school teacher. During a number of her years teaching, the Respondent also taught some evening adult education courses, but she has not done so since the 1983/1984 school year. Numbered paragraph 4 of the Respondent's Continuing Contract of Employment with the School Board provides in pertinent part: The County Board may, upon recommendation of the County Superintendent, transfer and assign the Teacher to a similar position in any other school of the county, provided that the duties shall be similar to the duties originally assigned and the salary shall be in accordance with the salary schedule. Gadsden County School Board Rule 4.113, provides in pertinent part: TRANSFERS.--The assignment of an employee shall be the responsibility of the Board upon recommendations of the Superintendent. Employees who desire a change in assignment involving a transfer to another school or position shall file a written statement of such desire . . .. * * * (2) In order to meet the staffing needs of the district, it is occasionally necessary to transfer an employee involuntarily. Such transfer shall be effective after consultation with and notice to the employee involved. Article VII, Section C., of the Collective Bargaining between the School Board and the Gadsden County Classroom Teachers Association in effect from 1992 through 1995, governing Transfer and Reassignment, provides in pertinent part: The Board and the GCCTA recognize that the transfer of employees shall be the responsibility of the Board upon recommendation of the Superintendent. Any teacher who desires a change in grade and/or subject assignment in the following year or who desires to transfer to another school in the following year shall file . . . a written request to that effect . . .. * * * In making transfers, the Board will first review requests of volunteers. . . .. During the 1991/1992 and 1992/1993 school years, the Respondent was teaching third grade at the Stewart Street Elementary School in Quincy. During those years, the Respondent suffered from a certain amount of stress, and she made her complaints of stress known to her principal, Douglas Black, as well as to some of her coworkers and, during the spring of 1992, to Harold Henderson, who was a member of the School Board at the time, but who also was running for election as School Superintendent. Henderson won the election and became the Gadsden County School Superintendent. From approximately the time that Harold Henderson became School Superintendent, Douglas Black began asking him to transfer the Respondent to another school in order to resolve certain difficulties he was having at the school that involved the Respondent. One less than satisfactory aspect of the Respondent's performance as an elementary school classroom teacher in recent years was that she frequently was tardy. Out of 196 work days in the school year, the Respondent was tardy 64 days in 1990/1991, 60 days in 1991/1992, and 105 days in 1992/1993. Since she had the key to her classroom, children in her class would have to wait in the hall for her to arrive, and other teachers would have to leave their classrooms unattended to either monitor the children in the hallway or to get a master key to let the children into the Respondent's classroom. The tardiness of course came to Black's attention, and conflicts developed between the Respondent and Black when Black tried to enforce his policies against tardiness. (These conflicts certainly also contributed to the Respondent's stress.) The Superintendent denied Black's initial requests that the Respondent be transferred, but major new problems developed during one lunch period in February, 1993, when a fellow teacher, Juanita Austin, attempted to prevent children from the Respondent's class from cutting in front of Austin's class in the lunch line. Accusations of misconduct flew between the Respondent and Austin, and at least the children from the Respondent's class became embroiled in the controversy. Unable to resolve the problem between the two teachers any other way, Black was reduced to having change the lunch schedules of the two teacher's classes. But, when he instructed Austin to take her class to lunch earlier than the Respondent's, the Respondent accused Black of favoritism. The principal thought that he was doing the best he could to deal with the problems the two teachers were having and felt that the Respondent was being obstinate and difficult in opposing his proposed solution to the problem. As a result of the lunchroom dispute and its aftermath, all three became embroiled in ongoing disputes and arguments that were disruptive and that detracted from their performance of their assigned work. In addition, the Respondent began to accuse Black of other misconduct, including the alleged use of vulgar language. 1/ The situation was brought to the attention of the Superintendent and his staff. By the end of the 1992/1993 school year, Superintendent Henderson decided that it would be best for all concerned if he transferred the Respondent out of Stewart Street Elementary. He approached Black and confirmed that Black still was interested in having the Respondent transferred. He had Black put the request in writing. Black put his request for the transfer in writing on June 3, 1993. The next day, Superintendent Henderson formally granted the request in writing and initiated the mechanics of a lateral transfer at the same salary as for her previous position as elementary school teacher. The first step the Superintendent's staff had to take to implement the transfer was to locate a position to which to transfer the Respondent. The staff was able to identify an opening in its Adult Education Program for a teacher to provide education services at the adult mental health services center operated by Apalachee Community Human Services at a facility near the Gadsden Memorial Hospital. There was no evidence of any other teachers volunteering to transfer to this position, and no special certifications were required for the position so that the Respondent's certifications for the position fully qualified her for the job. (As noted, she had taught in the School Board's adult education program in the past.) When the opening was brought to the Superintendent's attention, he approved it. The new position would entail only two or three hours of actual classroom teaching a day, and class size would average only approximately 15 students per class, instead of approximately 30 elementary school children in each of the Respondent's elementary school classes. The Superintendent felt those differences between the two positions would help reduce the Respondent's job stress. In addition, in the new position, the Respondent would work much more independently than as an elementary school teacher. No School Board supervisors or administrators are housed at the adult mental health services center, and the Respondent would not be monitored very closely. Since, during the course of a normal work day, the Respondent would encounter no School Board personnel other than possible the two part-time teachers, the Superintendent felt that the new position would help minimize the personality conflicts the Respondent was encountering at Stewart Street Elementary. Finally, if the Respondent is tardy for class in the new position, it would not cause the same kinds of discipline and administrative problems as it did at Stewart Street Elementary. The School Board would not even monitor the Respondent for attendance and timeliness at the adult mental health services center, which the Superintendent felt also would serve to reduce the Respondent's job stress. The preliminary steps having been taken, the Superintendent made the transfer official by including it in a July 20, 1993, list of recommended transfers to be presented to the School Board for consideration at its July 27, 1993, meeting. Meanwhile, the Assistant Superintendent, Corbin Scott, telephoned the Respondent and informed her the next day that the transfer had been recommended. The Respondent objected to the transfer. The transfer was considered at the July 27, 1993, meeting of the School Board. The Respondent appeared at the meeting and spoke in opposition to the transfer. Over the Respondent's objection, the School Board voted to transfer the Respondent, as recommended by the Superintendent, effective August 9, 1993. The Respondent's salary in the new position is the same as for her previous position as elementary school teacher. At her new position, the Respondent's "students" actually are clients of the mental health services center. Most suffer from a mental or emotional condition that debilitates them in some way and makes it difficult for them to achieve academically; some also suffer from drug or alcohol dependence. Based on the evidence, there does not seem to be much semblance of continuity in the course of instruction the Respondent is able to give. There does not necessarily seem to be any educational logic or continuity to when they begin the mental health center's education program or when they discontinue it (sometimes when they destabilize mentally and have to be institutionalized.) When students are "enrolled," neither the Respondent nor the Gadsden County School Board seems to have any control over whether the "students" attend the classes offered to them; control over is left to the mental health services center. Nor does the Respondent have any real control over her "students" while they are in class with her. While "class" is in session, the "students" are free to do as they choose. They can pay attention or ignore the Respondent, sit down or stand up, and come or go as they choose. The Respondent is instructed not to attempt to discipline the "students" for not attending to and participating in class, or to attempt to require them to attend to or participate in class, primarily because there is the risk that the Respondent's actions could cause them to destabilize while they are in class with the Respondent. The Respondent's new position as a teacher at the adult mental health services center certainly is not identical to her former position as an elementary school teacher. In some ways, the positions are similar, but there also are significant differences between the two positions. Whether the two positions are "similar" for purposes of this case is a mixed question of both fact and law. There was no direct testimony or evidence on the question whether the Respondent's new position as a teacher at the adult mental health services center has the same "professional prestige" as the position of elementary school teacher. The answer to the question has to be inferred from evidence as to the nature of the two positions. It is found that, as compared to the elementary school teaching position the Respondent had, the adult education teaching position to which the Respondent was transferred does not have "similar professional prestige."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Gadsden County enter a final order: (1) either reinstating the Respondent, Mary L. Martin, to her former position as elementary school teacher at Stewart Street Elementary School or transferring her to a similar position at the same salary; but (2) denying her claim for the award of attorney fees and costs. RECOMMENDED this 28th day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of June, 1994.
