Findings Of Fact By operation of the Constitution of the State of Florida, Article IX, Section 4(b), the Board is charged with the operation, control and supervision of all schools within Volusia County, Florida. By state law, Section 230.01, Florida Statutes (1991), the State of Florida has delegated to the Board the responsibility for the actual operation and administration of all schools within Volusia County. Section 230.23, Florida Statutes (1991), provides that the Board will exercise, inter alia, the following general powers: (5) PERSONNEL - Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of Chapter 231: (a) Positions, qualifications and appointments. - Act upon written recommendations submitted by the Superintendent for positions to be filled . . . Section 230.33(7)(a), Florida Statutes, requires the Superintendent of Schools to make written nominations of persons to fill positions established by the School Board. With respect to classroom teachers employed by the Board, such employees may be granted tenure, that is the right to continuing employment subject to removal upon certain conditions. The tenure rights of classroom teachers employed by the Board are provided by the Volusia County Teachers' Tenure Law, Chapter 18964, Laws of Florida (1937), as amended (hereinafter referred to as "the Volusia County Tenure Law" or "the tenure law.") The procedure used by the Board in determining which teachers are to be granted tenure begins with a recommendation made by the principal who is supervising the teacher in question. The recommendation is made to the Board's personnel office which then passes it on to the Superintendent, who either supports the recommendation by making it to the School Board or not. Only the Board may reelect a teacher for employment, and such reelection is an essential precondition to the obtainment of status as a tenured teacher. The Volusia County Tenure Law provides for a probationary period of three years following which, if the teacher is reelected to employment for a fourth consecutive year and fills other requirements set forth in the tenure law, he or she will obtain tenure. In the case of the three individual Petitioners who are parties to this action, each was denied tenure following her third year of employment, but did obtain employment in the status of a fourth year probationary employee. The alternative to this fourth year of probation was described by the Board's representative as a "failure to enter into a contract for an additional year and termination." The Union introduced a list of three teachers besides the individual Petitioners in this action as Petitioners' Exhibit 7. Of the three persons listed in that exhibit, one, Hall, was granted tenure after her fourth year of probation. Another, Maynar, was granted tenure after his fifth year of probation. The third, Powers, was granted tenure after seven years of probationary status. The fact that two of those teachers served probationary periods in excess of four years was described to be as the result of "oversight" on the part of the Board. Petitioners' Exhibit 1 sets forth tenure treatment of classroom teachers employed by the Board from and including the 1988-89 school year to and including the 1991-92 school year. In the 1988-89 school year, 123 teachers received tenure after a third year of probation, 12 teachers were granted tenure after a fourth year of probation, 115 teachers were non-renewed (terminated) after their third year, and 23 accepted a fourth year of probation. In the 1989-90 school year, 110 teachers received tenure after their third year, 22 were granted tenure after a fourth year of probation, 25 were non-renewed, and 25 accepted a fourth year of probation. In the 1990-91 school year, 155 teachers received tenure after their third year, 25 were granted tenure after a fourth year of probation, 28 were not renewed after their third year, and 41 accepted a fourth year of probation. In the 1991-92 school year, the last year for which records were available at the time of the hearing, 198 teachers received tenure following a third year of probation, 46 were granted tenure after a fourth year of probation, 33 were not renewed after their third year of probation, and 9 accepted a fourth year of probation. On March 30, 1993, Dr. Willie D. Brennon, Assistant Superintendent for Personnel for the Board, issued an interoffice memorandum to all principals and department heads which informed those principals and department heads that contract "Status 5," that is the granting of a fifth probationary year, was no longer an option open to principals and department heads dealing with classroom teachers. The Board's Division for Personnel Services has also issued a document entitled "Procedure for Giving Notice of Non forms for the employment and treatment of teachers. The Board has not promulgated any set of standards to be used by a principal in deciding whether he or she will recommend a classroom teacher for tenure. On April 19, 1991, Pearl Coleman was employed by the Board as a classroom teacher. On that same day, Ms. Coleman's principal, Rowena Reddix, completed a form entitled "Instructional Personnel Reappointment 1991 School Year." In that form, Ms. Reddix requested that Ms. Coleman be recommended for reappointment for the 1991 On May 10, 1991, Ms. Reddix recommended that Ms. Coleman be granted tenure by completing a form entitled "Recommendation for Tenure 1991-92 School Year." However, Ms. Reddix later rescinded her recommendation that tenure be granted to Ms. Coleman. After the recision, on June 13, 1991, Ms. Reddix recommended that Ms. Coleman be appointed as a probationary (non employee for the 1991 document, Ms. Coleman accepted employment as a probationary employee by executing a sworn statement that read as follows: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991-92 school year. When Ms. Coleman signed that statement and accepted employment as a probationary employee, she understood that, but for her acceptance of this status, she would not be employed by the Board. Furthermore, although Ms. Coleman believed she would receive tenure after her fourth year of probation, she understood that she did not have tenure in that fourth year. On May 15, 1992, Mr. Gerald L. Gill, who succeeded Ms. Reddix as Ms. Coleman's principal, signed a letter, which informed Ms. Coleman that she would not be recommended for employment for the 1992-93 school year and that the Board would not enter into a contract of employment with her for any period subsequent to the 1991-92 school year. Linda L. Williams was employed by the Board as a classroom teacher for the 1989-90, 1990-91, and 1991-92 school years. In her third year of employment, Ms. Williams was employed as a classroom teacher at Woodward Avenue School and served under principal Jo Anne Rodkey. In the same year, Ms. Rodkey informed Ms. Williams that she would not be recommended for reemployment because the school was losing a unit and therefore there was no position for her at the school. On May 12, 1992, Ms. Rodkey delivered to Ms. Williams a letter informing Ms. Williams that Ms. Rodkey would not be recommending her for tenure. Subsequently, Ms. Williams applied for a position as a sixth grade teacher at Holly Hill Middle School. Ms. Williams previously had been informed by Ms. Rodkey that any further employment by the Board would be as a probationary employee. Ms. Williams specifically understood that the only way she would be hired at Holly Hill was on a probationary basis and further understood that if she had not agreed to probationary status she would not have been employed at Holly Hill Middle School. Ms. Williams accepted employment at Holly Hill under these conditions. On June 12, 1991, Petitioner Lynne Demarest was employed as a classroom teacher at South Daytona Elementary School. On that same date, Ms. Demarest executed a notarized statement which stated: This is to inform you that I voluntarily accept classification as a probationary employee for the 1991 Subsequently, on June 14, 1991, Mr. David C. Butler, who was the principal at South Daytona Elementary School, recommended the reappointment of Ms. Demarest as a probationary employee for the 1991 time that Ms. Demarest accepted employment on probationary status, she understood that this was the only condition upon which she would be employed by the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is DENIED and DISMISSED. DONE and ORDERED this 12th day of October, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993. APPENDIX TO THE FINAL ORDER IN CASE NO. 93-1862 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Florida Education Association et al. 1. Proposed findings of fact 1-11 are unsupported by the competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Volusia County 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-17(1-17). COPIES FURNISHED: Lorene C. Powell Chief Trial Counsel, FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Thomas M. Gonzalez Attorney at Law 109 North Brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Carroll Webb Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, FL 32399-1300
The Issue Whether there are sufficient grounds for the imposition of disciplinary sanctions against Respondent?s teaching certificate, and if so, the nature of the sanctions.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796. § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds a teaching certificate issued by the Florida Department of Education, No. 608837, covering the areas of pre-kindergarten and primary education. Respondent?s current teaching certificate was issued as a result of the entry of a September 18, 2007, Settlement Agreement that resolved an initial denial of the teaching certificate for a series of pleas or convictions for financial crimes, including Public Assistance Fraud. The Settlement Agreement authorized the issuance of Respondent?s teaching certificate subject to a letter of reprimand and a two-year period of probation. The Settlement Agreement was adopted by the Education Practices Commission by Final Order entered on January 25, 2008. Respondent was employed by the Gadsden County School Board in various positions since 2005, most of them being as a teacher at the elementary school and kindergarten level. Respondent received instructional employee evaluation ratings of “very effective” for the 2006-2007 school year, and of “effective” for the 2007-2008, 2008-2009, and 2009-2010 school years. Respondent was suspended from teaching by the Gadsden County School Board on January 3, 2011 for issues relating to her December 21, 2010, arrest for drug-related offenses. The suspension was upheld at a meeting of the Gadsden County School Board on January 25, 2011. Respondent was rehired as a Gadsden County substitute teacher in February, 2011, and worked in that capacity at two schools until December 2012. The decision to rehire was made to accommodate Respondent with lawful employment so as to meet the terms of her probation. Administrative Complaint On November 30, 2012, Petitioner issued the Administrative Complaint that forms the basis for this proceeding. The Administrative Complaint identified the offenses that underlie the five specified counts. Resisting an Officer - September 29, 2007 On September 29, 2007, Officer Clark was in the process of effectuating an arrest of Respondent?s son at a convenience store located near Respondent?s home. According to Officer Clark, Respondent?s son was resisting efforts to place him in handcuffs. While Officer Clark was attempting to take Respondent?s son into custody, Respondent appeared on the scene and attempted to intervene in the incident. The nature of the intervention is disputed. When a back-up officer arrived, Officer Clark instructed him to take Respondent into custody. The only evidence of the disposition of the charge of resisting an officer was a printout of the case docket from the website of the Leon County, Florida Clerk of Court. The printout is hearsay, and comes within no exception to the hearsay rule set forth in section 90.803, Florida Statutes. Disposition of the charge of resisting an officer was not supported by competent, substantial, and non-hearsay evidence. Thus, no finding can be made to substantiate that charge. Driving Without a Valid License - January 2, 2010 On January 2, 2010, Respondent was driving her vehicle in Tallahassee. She was stopped by Officer Hurlbut for a traffic infraction. Respondent presented Officer Hurlbut with a Florida driver?s license. When Officer Hurlbut ran the driver?s license through his onboard computer, he discovered that the driver?s license produced by Respondent was not current, and that Respondent?s driver?s license had been suspended. Officer Hurlbut issued a citation and notice to appear to Respondent, and seized her expired driver?s license and her automobile tag. On April 14, 2010, Respondent entered a plea of no contest to a charge of operating a motor vehicle without a valid driver?s license, a second-degree misdemeanor, was adjudged guilty, and was placed on probation for a period of six months. Driving Without a Valid License/Violation of Probation - September 26, 2010 On September 26, 2010, Respondent was stopped by Highway Patrol Sergeant Teslo for driving without a seatbelt. Respondent had no identification. Sergeant Teslo asked Respondent to write her name and date of birth on a sheet of paper so that he could run it through his onboard computer. The name and birthdate provided by Respondent were not those of Respondent. When Sergeant Teslo determined that the name and birthdate were not those of Respondent, he returned to her car, whereupon Respondent provided him with her real name and birthdate. When Sergeant Teslo ran Respondent?s name and birthdate, he discovered that Respondent was operating her vehicle while her driver?s license was suspended. He issued a traffic citation, and waited for a licensed driver to come and pick up Respondent. As a matter of discretion, Sergeant Teslo did not charge Respondent with providing false information. On September 30, 2010, an affidavit of probation violation was executed which alleged that Respondent violated her April 14, 2010, sentence of probation by driving with a suspended license. A warrant was issued, and Respondent was taken into custody. Respondent entered a plea of no contest to a reduced charge of operating a motor vehicle without a valid driver?s license. Adjudication was withheld. Drug Offenses - December 9, 2010 On December 9, 2010, after a period of investigation and surveillance of Respondent?s home, the Tallahassee Police Department executed a search warrant for the home. Respondent was not at the home when the search was conducted. Respondent arrived at her home while the search warrant was being executed. There were numerous police cars around the house. Respondent asked a neighbor to watch the house and retrieve the keys when the search was done while she took her pit bulldog, which had been Tasered during the execution of the warrant, to the veterinarian. The neighbor later called Respondent to advise her that drugs were found during the search. Thus, the search and its results were openly known in the area. During the execution of the search warrant, two of Respondent?s sons were taken into custody. The search of the home uncovered a significant quantity of powdered and crack cocaine, cannabis, and various articles of paraphernalia located in rooms throughout the home, including the kitchen and Respondent?s bedroom. On December 21, 2010, Respondent was arrested for a number of drug-related offenses. On February 11, 2011, an Information was filed charging Respondent with trafficking in controlled substances, a felony of the first degree; sale or possession of controlled substances with intent to sell within 1000 feet of a convenience store, a felony of the first degree; sale or possession of controlled substances with intent to sell within 1000 feet of a convenience store, a felony of the second degree; and possession of paraphernalia, a misdemeanor of the first degree. On November 15, 2011, Respondent entered into a deferred prosecution agreement for the charged offenses subject to Respondent?s compliance with various terms of the agreement. Public Assistance Fraud - July 25, 2012 On July 6, 2012, an affidavit was executed by Department of Economic Opportunity Investigator Marshall, in which it was alleged that Respondent made false statements that she was unemployed and not receiving wages or benefits from June 19, 2010 through February 26, 2011, so as to qualify for reemployment assistance benefits for which she was otherwise not eligible. Respondent asserted that she was, in fact, unemployed during the summer of 2010, since her annual contract expired at the conclusion of the 2009-2010 school year, and was not renewed until the commencement of the 2010-2011 school year. She further asserted that she was suspended without pay commencing on January 26, 2011. However, the evidence is undisputed that Respondent was employed and receiving wages for, at a minimum, the start of the 2010-2011 school year1/ until January 26, 2011. On July 25, 2012, an Information was filed charging Respondent with Unemployment Compensation Fraud, a felony of the third degree, for making false statements to obtain or increase benefits under Florida unemployment compensation laws. On November 2, 2012, Respondent entered a plea of nolo contendere to the felony charge of unemployment compensation fraud, was adjudicated guilty, was placed on probation for a period of five years, and was ordered to pay restitution to the Florida Reemployment Compensation Trust Fund in the amount of $7,972.00 and to pay an additional $750 in court costs.
Recommendation Upon consideration of the findings of fact and conclusions of law reached herein, it is RECOMMENDED that Petitioner enter a final order permanently revoking Respondent?s teaching certificate, No. 608837. DONE AND ENTERED this 16th day of December, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 16th day of December, 2013.
The Issue Whether the charges contained in the Petitioners' complaints constitute a basis for discipline against Respondent's Florida teacher's certificate pursuant to section 231.28, Florida Statutes (1984 supp.), and for the suspension or dismissal of Respondent from employment with the school Board pursuant to Section 231.36, Florida Statutes (1984 supp.)?
Findings Of Fact The Respondent is licensed as a teacher by the Florida Department of Department of Education. He holds Florida Education Certificate Number 486520 (this fact was admitted in the Pre-Hearing Stipulation). The Respondent is employed by the School Board pursuant to a continuing contract of employment (this fact was admitted in the Pre-Hearing Stipulation). The Respondent's Florida Teacher's Certificate qualifies him to teach "quantity food" at the Vocational-Technical level. Respondent was employed by the School Board to teach culinary arts at the Pinellas Vocational Technical Institute. The average age of students taught by Respondent was 25 to 30 years. During the 4 years the Respondent has been employed with the School Board he has received satisfactory and above satisfactory evaluations. The following facts have all be admitted in the Pre-Hearing Stipulation. In 1972, in the State of Vermont, the Respondent pled no contest to possession of 2.2 grams of hashish. In 1976, in the State of Pennsylvania, the Respondent was arrested for disorderly conduct. Adjudication is unknown. In 1976, in the State of Florida, the Respondent was arrested for possession of less than 4 grams of marijuana and driving while intoxicated. Respondent pled no contest. In 1977, in the State of Florida, the Respondent was arrested for possession of more than 4 grams of marijuana, resisting arrest with violence and assault on a police officer. Adjudication was withheld. Detective William Donal Gates, Jr., Tampa Police Department, participated in Respondent's arrest in 1977. Detective Gates identified the Respondent as the individual he arrested. Detective Gates also testified that the Respondent engaged in a physical altercation with one of the arresting officers. The record in these cases fully supports the facts admitted in the Pre- Hearing Stipulation. The record also supports the admission of the Respondent in the Pre-Hearing Stipulation that he did not disclose his criminal record when applying for a Florida Teacher's Certificate or employment with the School Board. In applying for a Florida Teacher's Certificate and employment with the School Board, the Respondent failed to disclose any of his convictions and arrests listed above except his arrest for DWI; the arrest for DWI was reported on a Personal Data Sheet Post Employment Information form. On September 11, 1980, the Respondent certified as true his response to questions he answered on an Application for Teacher's Certificate filed with the State of Florida. The Respondent acknowledged on the Application that he understood the following: Florida Statutes provide for the revocation of teacher's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. On the September 11, 1980 Application the Respondent answered "no" to the following question: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Despite the Respondent's acknowledgement on the Application, Respondent's answer to this question was clearly untrue. Respondent also untruthfully answered the same question on an Application for Teacher's Certificate and Reapplications for Temporary Certificate signed by the Respondent on May 13, 1981, April 13, 1982, and April 7, 1983. On each of these forms there was a statement to the effect that the Respondent, by signing his name thereto, acknowledged his answers were true and correct. There was also a statement on these forms that informed the Respondent that he could lose his teaching certificate if he obtained it through fraudulent means. The Respondent acknowledged this statement. On September 24, 1980, the Respondent signed an application for employment as a teacher with the School Board, and his signature appeared under the following language on the application form: [I]f employed by the School Board of Pinellas County, Florida [I] do hereby solemnly swear or affirm that I will support the Constitution of the United States and of the State of Florida. I further certify that all information given on this application is true to the best of my knowledge. Despite this statement, the Respondent answered "No" to the following question: Have you ever been convicted of a misdemeanor (other than minor traffic violations), a felony, or any other offense involving moral turpitude? The Respondent also answered this question negatively on an application for part-time employment filed with the School Board. Finally, on December 2, 1980, the Respondent was asked the following two questions on a Personal Data Sheet Post Employment Information form: Have you ever been arrested? YES( ) NO( ) If yes, please list all arrests by date, location, and charges. Have you ever been convicted? YES( ) NO( ) If yes, please list convictions by date, and location. In response to the first question, Respondent answered by placing an "X" after "YES and listed "D.W.I." Respondent also placed an "X" after "NO" in response to the second question. These responses were certified as true by the Respondent. Respondent admitted in the Pre-Hearing Stipulation and at the hearing that he failed to report his arrests and convictions when he applied for a Teacher's Certificate and for employment with the School Board. At the final hearing, the Respondent indicated that he did not disclose his arrests and convictions because he believed that his criminal record had been sealed. According to the Respondent, the attorney who represented him when he was arrested in 1977 told him that he would arrange to have the Respondent's criminal record sealed if he would cooperate with the authorities. His attorney also told him that the authorities had agreed to drop the charges against him if he would cooperate. The Respondent did in fact cooperate and the charges against him were dropped. The Respondent indicated that he believed his record had been sealed since the charges were dropped. There is no evidence, however, that the Respondent's attorney told him that the authorities had agreed that they would have his records sealed or that they had in fact been sealed, only that his attorney said he would have them sealed. The Respondent, when first confronted with his prior arrests and convictions by Ms. Nancy Zambito, School Board Director of Personnel Services, in July of 1984, did not tell Ms. Zambito or Mr. Warren Laux, principal of Pinellas Vocational Technical Institute, who was also present, that he had not divulged his criminal record because he believed his record had been sealed. Instead, the Respondent gave other reasons for not answering the questions correctly including his concern that he would not be hired by the School Board if he told the truth. Based upon the foregoing, it is concluded that the Respondent intentionally misrepresented his criminal history because he believed he would not be employed by the School Board or granted a Florida Teacher's Certificate if he divulged his criminal record. Dr. Ronald Stone, the Executive Assistant Superintendent for Human Resources for the School Board, testified that, based upon the arrests and convictions of Respondent and his failure to disclose his record, the Respondent would not be granted a Florida Teacher's Certificate and should be dismissed from employment with the School Board. Dr. Stone also testified that the School Board's policy as to the treatment of persons who disclose criminal offenses on their applications is to determine whether the crime involved was serious enough to render an applicant unsuitable to teach. Based upon the nature of Respondent's offenses, Dr. Stone indicated that the Respondent was unsuitable for employment as a teacher. Ms. Zambito also testified that the appropriate sanction in these cases would be revocation of the Respondent's Florida Teacher's Certificate and dismissal from employment with the School Board. Both Dr. Stone and Ms. Zambito based their opinion on their conclusion that the Respondent's actions violated the public trust and because of the negative effect on students, regardless of their age, of a teacher with the Respondent's background.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found not guilty of "immorality" under Section 231.36(4)(c), Florida Statutes (1984 Supp.), and "gross immorality" under Section 231.28(1)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of "misconduct in office" in violation of Section 231.36(36)(4)(c), Florida Statutes (1984) Supp.). It is further RECOMMENDED: That Respondent be found not guilty of being convicted of a crime involving moral turpitude in violation of Section 231.36(4)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of obtaining his teaching certificate by fraudulent means in violation of Section 231.28(1)(a), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found not guilty of an act involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found not guilty of having been convicted of a crime in violation of Section 231.28(1)(e), Florida Statutes (1984) Supp.). It is further RECOMMENDED: That Respondent be found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(a), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be found guilty of violating Section 231.28(1)(h), Florida Statutes (1984 Supp.). It is further RECOMMENDED: That Respondent be dismissed from his employment with the School Board and his continuing employment contract be cancelled. It is further RECOMMENDED: That Respondent's Florida Teacher's Certificate be permanently revoked. DONE and ENTERED this 6th day of May, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 6th day of May, 1985. COPIES FURNISHED: Usher Brown, Esquire Associate School Board Attorney 1960 E. Druid Road P.O. Box 6374 Clearwater, Florida 33513 Robert McKee, Esquire KELLY & McKEE, P.A. 401 S. Albany Avenue Tampa, Florida 33606 Mr. Donald L. Griesheimer Executive Director Department of Education Education Practices Commission Tallahassee, Florida 32301 =================================================================
The Issue The issue for determination in this case is whether Respondent should be discharged from her employment as a teacher in the Duval County Public School System for professional incompetency pursuant to Section 4(e) of the Duval County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended)
Findings Of Fact At all times relevant to this proceeding, the Respondent, Jewel Jones, was a tenured public school teacher licensed by the State of Florida in elementary education and exceptional education, and is currently a certified teacher in the fields of elementary and exceptional education. She has been employed by the Duval County School Board for 28 years (T 467- 468). For seven years, she taught educable mentally retarded students and for eighteen years taught elementary education (T 468-469). Prior to the 1984-85 school year, Ms. Jones taught elementary education at Beauclerc Elementary School for twelve years (T 469). Until the 1984-85 school year she had received satisfactory performance evaluations for each of her years of employment (T 470, Res. Ex. 3). Respondent received unsatisfactory evaluations from two different principals at two different schools for the 1984-85 and 1985-86 school years. At the end of the 1983-84 school year, Ms. Jones transferred to a school closer to where her mother lived because her mother, who was an alcoholic, had health problems (T 146,472). Ms. Jones requested and ultimately received a transfer to the Hyde Park Elementary School where she was employed for the 1984-85 school year (T 475). During the summer of 1984, Ms. Jones experienced a number of personal family problems. On July 25, 1984, her son was arrested and charged with sexual battery. This same son had been previously charged and convicted of the same offense and had served over six years in prison. The son was tried in December 1984 and acquitted of the charge, but returned to jail for violation of his parole (T 476-478). In addition, Ms. Jones' daughter had dropped out of college and started writing a series of bad checks. Ms. Jones was concerned about the welfare of her family (T 479, 145-146). In January 1985 Ms. Jones sought the aid of a board certified psychiatrist and neurologist, Dr. John Stamm (T 144), who treated Respondent between January 23, 1985 and July 15, 1985 (T 144-149), while Respondent was at Timucuan Elementary School. Ms. Jones reported to Dr. Stamm that she had been depressed for about six months prior to seeing him and that she was having crying spells and difficulty sleeping (T 146). Dr. Stamm's diagnosis was that Respondent had suffered "a major depressive episode," which he treated with medication and psychotherapy, and which he felt was situationally related to the problems Respondent's mother, daughter, and son were having (T 149,150). As part of his treatment, Dr. Stamm prescribed "a significant amount of antidepressant medication" for Respondent (T 157). Dr. Stamm testified that Respondent's significant depression would have had an adverse impact on her work performance (T 160, 163) and could have been detected by some of the students in her class leading to a sense of unease or concern on their part (T 161). Dr. Stamm stated that most frequently depressive episodes are time limited, but that he was unable to determine whether the Respondent's condition was time limited or permanent (T 150). The principal at Hyde Park Elementary School during the 1984-85 school year was Virginia K. Greene. Greene observed the Respondent's work during the 1984-85 school year. Respondent was unable to maintain discipline, keep the children on task, and present her lessons in an organized fashion. Respondent jumped from one subject to another, losing the interest and the attention of the students in the process (T 82-83). Respondent's relationship and rapport with parents of the children in her class was poor. Respondent was absent from school on a total of 31 occasions during the 1984-85 school year, was tardy on numerous other occasions, and on various occasions failed to notify the school so that proper substitute teachers could be arranged (T 71-73). Ms. Greene attempted to secure assistance for Respondent from the School Board's teaching cadre. The teaching cadre assists teachers in their techniques. Respondent refused this assistance. Respondent never explained her family problems to Greene, nor gave Greene any reason why a teacher with her background was having problems. In accordance with the collective bargaining agreement and the documentation requirements of the School Board, Ms. Jones received an official notice of deficiencies (Pet. Ex. 4, Res. Ex. 1, Para. A-5) and had a conference with Greene regarding the notice. Although Jones' performance had improved, it was not enough to justify a satisfactory performance evaluation (T 504-508). On March 15, 1985, Ms. Greene gave Ms. Jones an unsatisfactory rating on her annual evaluation form. Ms. Jones received a total of nine reduction points on her evaluation form (Pet. Ex. 7, Res. Ex. 1, Para. A-1), one more than the maximum of eight which is considered unsatisfactory. Ms. Jones received eight of the nine reduction points in four areas under classroom management. Ms. Greene was an experienced teacher and principal and qualified to assess the Respondent's work. In Ms. Greene's opinion, the Respondent was not a competent teacher during the year based upon Greene's observations and those of the teaching cadre reporting to Greene. Greene's evaluation reflected her assessment of the Respondent's performance. In Greene's opinion, the students in Respondent's class did not have a successful year during the 1984-85 school year. The teacher evaluation form provides 36 factors or areas of teacher competency which are to be evaluated. No guidelines are provided to the evaluators on performance indicators to be used to evaluate each area of competency (T 140). Ms. Greene had a set of predetermined indicators based upon her experience that she used to evaluate all teachers. Some of the indicators Greene used to determine competency in classroom management were common to more than one of the six areas assessed under management. Structured observation forms are provided for the evaluation of beginning teachers. The forms for beginning teachers are more objective than the ones used for tenured teachers (T 399-400). Ms. Greene testified that in the 1984-85 school year, she used the same evaluation system for all the teachers whom she rated (T 186). Of the 28 teachers evaluated by Ms. Greene, only Ms. Jones received a less than satisfactory or a "needs improvement" rating in any of the 36 rated factors (T 180-185). Following the conclusion of the 1984-85 school year, Respondent was given the opportunity to transfer to a new school as required by Section 4(e)(2) of the Tenure Act. Respondent availed herself of that opportunity and transferred to Timucuan Elementary School, where she was employed during the 1985-86 school year. Jane Sharpe Condon was the principal at Timucuan Elementary School at the beginning of the 1985-86 school year. Ms. Condon reviewed Ms. Jones' personnel file and was aware that Ms. Jones was classified as a less than satisfactory (LTS) teacher. Ms. Condon counseled with Respondent, concentrating on the areas of indicated weakness (T 243, 244, 288). In addition, Condon counseled Respondent about avoiding derogatory remarks about students and the school, and the importance of maintaining professional relationships with parents and with school staff (T 244-248). Condon prepared a plan for Respondent to improve her classroom management. Ms. Condon followed the Board's instruction of documenting and establishing a record of Ms. Jones' performance, compiling a large number of documents regarding Ms. Jones' performance (T 275-276; Res. Ex. 1, 1a-4, b-2, b- 3, b-5; Pet. Ex. 15, 16, 17, 18, 19, 20, 21, 22, 23, 24). During the 1985-86 school year, Ms. Condon evaluated Ms. Jones two times as required, once in October 1985 and again in March 1986, and rated Ms. Jones unsatisfactory (Res. Ex. 23, 24). Ms. Condon arranged for Betty John Miller, the school's reading resource teacher, and Marilyn Russell, a member of the Duval County School Board teaching cadre, to provide assistance for Respondent during the 1985-86 school year (T 248-249). Ms. Condon observed Respondent's classes. Respondent's class completely ignored Respondent's instructions. Respondent failed to maintain the students' attention. The Respondent "overdwelled" in her lesson presentation. The Respondent interrupted her teaching on numerous occasions to threaten disciplinary action against unruly students, but she failed to follow through when students continued their disruptive behavior (T 257-258). Betty John Miller, the reading resource teacher at Timucuan Elementary School during the 1985-86 school year, worked with the Respondent and observed her class in order to assist Respondent in improving her teaching technique. Respondent was unable to conduct a reading group with part of her class and keep the remainder of the class on task with their given assignments. Although Respondent listened to Miller's suggestions, she did not follow through in implementing them (T 306-307). Marilyn Diane Russell, a member of the Duval County School Board teaching cadre, observed the Respondent's teaching during the 1985-86 school year. Respondent had difficulty in communicating orally with her students and too frequently repeated instructions to the children (T 341). Respondent was unable to organize a lesson with a review, introduction and development of new material, practice activities, follow-up and another review (T 347). Respondent made excessive use of questions which require the simple recitation of facts. In the latter part of January or the early part of February, 1986, Russell was transferred to another position and ceased working with Respondent. Another member of the teaching cadre, Barbara Vandervort, began working with Respondent (T 357). Ms. Vandervort consulted with Ms. Russell, reviewed Respondent's file, and consulted with Ms. Condon to assure that there would be no break in the efforts to assist Respondent. (T 407-412). Ms. Vandervort worked with Respondent on numerous occasions in an effort to improve Respondent's behavior management and to eliminate her use of repeated reprimands in an attempt to keep order in the classroom (T 413-414). The deficiencies identified by Ms. Condon were still present during the latter part of the 1985-86 school year (T 417-418) when Vandervort observed Respondent's work. Ms. Vandervort saw student throw rubber bands at Respondent, who told the student to take a seat in the back of the room. When the student failed to do so, Respondent took no further disciplinary action (T 416). Ms. Vandervort observed that Respondent was unable to put all of the elements of a proper lesson development together at one time or to teach a complete lesson (T 416-417). Ms. Vandervort, Ms. Russell, and Ms. Miller reported their observations to Ms. Condon. Based upon these reports and her own observations, Ms. Condon evaluated Respondent's performance as below standard for the 1985-86 school year although there was some slight improvement noted from time to time (T 270-271). Condon did not consider Respondent competent as a teacher during the 1985-86 school year (T 271-272). The general memorandum on Evaluation of Instruction Personnel (Res. Ex. 1) was the only written instruction Ms. Condon received to assist her in compiling teacher evaluations (T 276-277). Respondent stated that her personal and psychiatric problems interfered with her performance during the 1984-85 school year and that she did not have a good year (T 539 & 540). Respondent admitted that it would have been better to have taken leave in order to work out her personal problems rather than continue to teach (T 541). Respondent admitted that she "probably did have problems" at the beginning of the 1985-86 school year, but that she felt she improved enough during the course of the year to be rated as satisfactory (T 547). Donna Darby, Respondent's principal at Beauclerc Elementary School during the 1983-84 school year, testified that Respondent's performance declined markedly during the latter part of 1983-84. Ms. Darby also testified that she discussed this problem with Respondent and indicated to Respondent that if her performance did not improve during the 1984-85 school year, Ms. Darby would request "additional support help" for Respondent (T 458-459). Respondent testified that she did not remember any conversations with Ms. Darby concerning her performance during the latter part of the 1983-84 school year (T 471-472). Numerous letters or memoranda were written to Respondent by various persons in an effort to point out her deficiencies and to offer suggestions for improvement. Her principals provided Respondent with clear and detailed statements of Respondent's deficiencies throughout 1984-85 and 1985-86. The School Board provided Respondent with limited in-service training during the 1985-86 school year in addition to the assistance of the teaching cadre. Respondent was afforded a public hearing, was informed of the nature and cause of the accusations, has confronted the accusing witnesses, was allowed to subpoena witnesses and papers, and secured the assistance of counsel. Neither the Duval County Teacher Tenure Act nor Duval County School Board has formally defined the term "professional incompetency;" however, the term is not specialized and is capable of general proof. At the start of the 1984-85 school year, the Respondent had a number of children with disciplinary problems (T 485); however, the children with disciplinary problems were evenly distributed among the four other third grade classes, as were the better students (T 70). During the first few months of 1984-85, Ms. Greene transferred four students from Ms. Jones' class (Pet. Ex. 3). The transfers were made primarily because of parent complaints to her (T 63-64) about Ms. Jones'. Ms. Greene did not have a cipal/teacher/parent conference with Ms. Jones to discuss the problems (T 493-495). During the entire school year, neither Ms. Russell nor Ms. Vandervort gave a demonstration class for Ms. Jones (T 524). The only help given by Ms. Russell and Ms. Vandervort other than critiques after their observations was a handwriting kit and two booklets (T 528-529, Res. Ex. 4, 5). The procedures utilized by the School Board are designed to document its decision to discharge a teacher as much as the procedures are intended to assist the teacher to improve his or her performance. No competent evidence was presented that the evaluation procedure used by the Duval County School Board is invalid. All of the Respondent's principals were teachers of significant experience, as well as having been principals for a number of years, and were qualified to evaluate the Respondent's performance. The acute depression from which Respondent suffered during the 1984-85 school year degraded her performance of her duties; however, her uncontroverted testimony was that she could now perform her duties. The data on class performance by students in Respondent's classes based on Jt. Exh. A, B, C & D reveals the following: At Hyde Park Elementary School, the grades of Respondent's class on the Standford Achievement Test were: Class Reading Math Rm. 13 53.88 55.64 Rm. 15 (Jones) 55.52 49.74 Rm. 16 60.23 50.42 Rm. 18 54.04 52.04 At Timucuan Elementary School the grades of the Respondent's class on the Standford Achievement Test were: Class Reading Math Rm. 18 1/ 62.00 54.52 Rm. 19 (Jones) 44.55 49.41 Rm. 20 43.52 47.19 Rm. 22 43.62 46.73 Rm. 24 2/ 72.23 81.73 At Hyde Park Elementary School the scores on the Essential Skills Test reflected Respondent's class had the next to the highest math performance and the lowest scores in reading, the opposite of the indications of the Standford Achievement Test. At Timucuan Elementary School the scores on the Essential Skills Test reflected the reading scores of the Respondent's students rose 6/10's, and her class was next to the worst class (Rm. 20) whose score fell from 80 to 74.6. The math scores of her class were the lowest. Again, these results are contrary to the Standford Achievement Test. The data above is counter to the opinion of the principals at both schools that Respondent's students suffered significantly in their learning. The Respondent's classes were average on the Standford Achievement Test which is indicative of a successful year.
Recommendation In the absence of the degree of proof required and mindful that the Respondent has been employed as a school teacher in Florida for over 25 years and that no action should be taken by the School Board which would have a chilling effect upon employees seeking professional help with mental and emotional problems, it is RECOMMENDED that: The complaint against Respondent be dismissed. DONE and ORDERED this 26th day of February, 1988, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1988.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state agency. Petitioner is a male who is now, and was at all times material to the instant case, unmarried. He is a teacher by profession. Since moving to Florida in the summer of 1992, however, he has been unable to obtain a full-time teaching position. Petitioner received a Bachelor of Arts degree from the State University of New York at New Paltz in December of 1984 and a Master of Arts degree (in "teaching/special education") from Manhattanville College in May of 1989. Prior to moving to Florida in the summer of 1992, Petitioner was employed as: a music instructor at the Kingston Conservatory of Music in Kingston, New York (from May of 1984 to September of 1985); a business instructor at the Westchester Business Institute in White Plains, New York (from September of 1985 to June of 1986); a substitute teacher in Pelham, Eastchester, Tuckahoe and Bronxville, New York (from September of 1986 to June of 1988); a music and vocational education teacher of 11 to 15 year old special education students at a public school in New York City (from September of 1989 to March of 1990); a classroom teacher of fourth grade special education students at a public school in the Bronx, New York (from March of 1990 to June of 1990); a classroom teacher of first through third grade special education students at a public school in Yonkers, New York (from September of 1990 to June of 1991); and an integration specialist involved in the provision of educational services to special education students attending public school in and around Jacksonville, Vermont (from February of 1992 to June of 1992). On October 15, 1992, the Department's Bureau of Teacher Certification issued Petitioner a Statement of Eligibility, which provided, in pertinent part, as follows: when: THIS IS YOUR STATEMENT OF ACADEMIC ELIGIBILITY FOR SPECIFIC LEARNING DISABILITIES (GR, K-12), PER REQUEST OF 10-9-92, VALID UNTIL OCTOBER 15, 1994. The State of Florida issues two types of certi- ficates for full time teaching; a nonrenewable Temporary Certificate valid for two years and a Professional Certificate valid for five years. The attached Form CF-106a, FLORIDA TEACHER CERTIFICATION REQUIREMENTS, outlines the criteria for the issuance of these certificates. The Temporary Certificate is issued to allow time to complete requirements for the Professional Certificate. Your application for teacher certification has been received and evaluated. Based upon current requirements, you will be eligible for a two- year nonrenewable Temporary Certificate valid for two consecutive school fiscal years covering SPECIFIC LEARNING DISABILITIES (GRADES K-12) You obtain employment with a Florida public, state supported, or nonpublic school which has an approved Florida Professional Orientation Program and your employer requests issuance of the certificate. Your employer submits a finger print card which has been processed by the Florida Department of Law Enforcement and the Federal Bureau of Investigation. . . Please note that if you are not employed and the issuance of your certificate is not requested by October 14, 1994, your Statement of Eligibility will expire. . . . At all times material to the instant case, there was, on a statewide basis in Florida, as determined by the Department, a "critical" shortage of teachers qualified to teach students with specific learning disabilities (SLD). (There were, however, certain school districts, including the Broward, Palm Beach, Collier and Monroe County school districts, that, because of the relatively high salaries they offered or their attractive geographic location, or for other related reasons, did not have a "critical" shortage of qualified SLD teachers.) The Department's Bureau of Teacher Certification suggested to Petitioner that he take advantage of the services offered by OTRR in his efforts to obtain a teaching position in Florida. OTRR assists teachers seeking employment in Florida by, among other things, providing them with an "information packet" containing: general information concerning Florida's public school system, its students and teachers; a map showing the school districts in the state; the names, addresses and telephone numbers of persons to contact regarding employment opportunities in each school district; other useful telephone numbers; salary information, by district; information concerning Florida's teacher certification process; and information about the Great Florida Teach-In, an annual event (held in late June/early July 1/ ) organized by OTRR at which recruiters from school districts around the state have the opportunity to meet and interview with teachers interested in obtaining teaching positions in their districts. 2/ In addition to this "information packet," OTRR also sends to interested teachers two forms which the teachers are instructed to fill out, sign and return to OTRR: an application to register to participate in the next Great Florida Teach-In; and a Teacher Applicant Referral form. On the Great Florida Teach-In registration application form, applicants are asked to provide the following information: the date of the application; their name, address and telephone number; the date they will be able to commence work; the position(s) sought; whether they hold a valid Florida teaching certificate- if so, in what subject area(s), and, if not, whether they have applied for certification and the subject area(s) in which they expect to receive certification; whether they have taken and passed the Florida Teacher Certification Examination and, if so, which part(s); whether they hold a teaching certificate from another state and, if so, in what subject area(s); whether they have ever had a teaching certificate or license revoked, suspended, or placed on probation and, if so, on what ground(s); whether they have ever been the subject of any disciplinary action and, if so, the nature and date of such action and why it was taken; whether they have ever been dismissed, asked to resign or not had a contract renewed and, if so, the reason(s) therefor; the total number of days they have been absent from school or work in the last three years and the reason(s) for these absences; and all colleges/universities from which they have received degrees, when they attended these institutions, when they graduated, the kind of degrees they received, the subjects they studied (major and minor), and whether their grade point average was higher than 2.5. On the Teacher Applicant Referral form, applicants are asked to provide the following information: the date of the application; their name, address, telephone number and social security number; the date they will be able to commence work; the position(s) sought; whether they hold a valid Florida teaching certificate- if so, in what subject area(s), and, if not, whether they have applied for certification and the subject area(s) in which they expect to receive certification; whether they hold a teaching certificate from another state and, if so, in what subject area(s); whether they are a U.S. citizen and, if not, whether they have a resident alien work permit; and the institutions from which they have received degrees, the kind of degrees they have received, and their major course of study at these institutions. On neither the Great Florida Teach-In registration application form nor the Teacher Applicant Referral form are applicants asked to provide information regarding their sex or marital status. (It may be possible, however, to ascertain an applicant's sex from the name of the applicant appearing on the form.) Following the suggestion of the Department's Bureau of Teacher Certification, Petitioner contacted OTRR. He thereafter received from OTRR an "information packet," as well as a registration application form for the 1993 Great Florida Teach-In (scheduled to be held June 27 through July 1, 1993) and a Teacher Applicant Referral form. Petitioner filled out and signed the Teacher Applicant Referral form on or about November 10, 1992, and returned the completed and signed form to OTRR. On the form, Petitioner indicated, among other things, that he was interested in "Special Education Teacher Type Positions- SLD" and that he was "Florida certified [in] Specific Learning Disabilities." In view of Petitioner's first and middle names (Steve Joseph), both of which he included on the form, it should have been obvious to anyone reviewing the form that it was submitted by a male. Petitioner, however, provided no information on the form suggesting that he was a single male. Petitioner kept a copy of the original completed and signed Teacher Applicant Referral form he submitted to OTRR. On or about October 2, 1993, he signed the copy and sent it to OTRR. At all times material to the instant case, it was the routine practice of OTRR to take the following action in connection with completed and signed Teacher Applicant Referral forms it received: Information on the forms was inputted and stored in OTRR's computer system. The forms (and copies thereof made by OTRR) were then filed in alphabetical order and by subject area. They remained on file for approximately a year, after which they were purged. When a school district contacted OTRR seeking help in its efforts to fill a particular teaching position, 3/ OTRR would pull the forms of all those applicants who, based upon the subject area of the position sought to be filled and any other criteria specified by the school district, appeared (from the information contained on their forms) to meet the needs of the school district. Copies of these forms, along with a computer printout containing the names, addresses, telephone numbers, certification status and citizenship of these applicants, were sent to the school district. On occasion, information concerning these applicants was provided to the school district over the telephone. At no time did OTRR fail to refer an applicant to a school district because the applicant was a male or was single. 4/ OTRR did not deviate from its routine practice in its handling and treatment of either the original Teacher Applicant Referral form that Petitioner submitted on or about November 10, 1992, or the re-signed copy of the original he submitted on or about October 2, 1993. (Petitioner, however, has not been contacted by any school district purporting to have received his name from OTRR.) 5/ Petitioner also filled out and signed the registration application form for the 1993 Great Florida Teach-In and sent it to OTRR, 6/ but he did not do so in a timely manner. (The application was dated June 27, 1993, the date the 1993 Great Florida Teach-In began.) Petitioner did not attend the 1993 Great Florida Teach-In, nor did he attend the event in any subsequent year. Petitioner has applied for teaching positions at public schools in Broward County (where he has resided since he moved to Florida in the summer of 1992), Dade County, Palm Beach County, Collier County, Monroe County and one other Florida county (located in the northern part of the state). He also has applied for teaching positions at at least one Florida private school, Lighthouse Point Academy, which is located in Broward County. Notwithstanding these efforts on his part, Petitioner has not received any offers of full-time, permanent employment and he remains unemployed. 7/ Petitioner has not taken any part of the Florida Teacher Certification Examination. The Statement of Eligibility that the Department's Bureau of Teacher Certification issued Petitioner on October 15, 1992, expired on October 15, 1994. The Department did not in any way discriminate against Petitioner on the basis of his sex or marital status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order dismissing Petitioner's amended unlawful employment practice complaint on the ground that the evidence is insufficient to establish that the Department committed the unlawful employment practice alleged therein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of August, 1996. Officer Hearings 1550 STUART M. LERNER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Hearings Division of Administrative this 14th day of August, 1996.
Findings Of Fact An Administrative Complaint was served on the Respondent in April, 1983. Herb A. Sang, Superintendent of Duval County County Schools, was responsible for those charges. In the complaint, it is alleged that Respondent is guilty of professional incompetency in fulfilling his duties as a teacher in the Duval County School System in the years 1979-80 and 1980-81. Respondent is a tenured teacher in the Duval County School System and had held that tenure at all times relevant to this inquiry. Respondent opposed these allegations, leading to the formal Subsection 120.57(1), Florida Statutes hearing. Respondent, who has been employed in the school system since 1954, was transferred to Duncan U. Fletcher Senior High School in 1971. Lee remained at Fletcher High through the school year 1979-80. In that year, Lee taught 10th grade English. His performance in the classroom was observed by Dr. Andrew Knight, principal at Fletcher High School, and by other professionals in the school. These observations commenced in September 1979 and continued throughout the school year. By January 30, 1980, Dr. Knight had gained a sufficient impression of the performance of the Respondent to write and inform him of areas of deficiency. A copy of that letter of evaluation may be found as Petitioner's Exhibit No. 7, admitted into evidence. In addition to setting forth deficiencies, the letter suggests techniques that might be employed to correct the deficiencies. Relevant areas of concern involved classroom management, teaching effectiveness and classroom performance. Those observations as set out in the letter of evaluation and critique of the Respondent's performance are an accurate depiction of the performance. All these items set forth relate to teacher competency and this depiction of Respondent, coupled with similar observations which were testified to during the course of the hearing, demonstrate a lack of competency on the part of the Respondent in performing his teaching duties. The deficiencies set forth in the letter of evaluation were explained to the Respondent in person. Following the interim evaluation of January, 1980, the annual formal evaluation was made on March 12, 1980. A copy of that evaluation may be found as Petitioner's Exhibit No. 9, admitted into evidence. As depicted in this document, Respondent was still perceived in March, 1980, as giving a poor performance as a teacher. This characterization of his performance, as found in the evaluation of March 12, 1980, is accurate and those observations, together with the observations of his performance as testified to in the hearing, point to the fact that the Respondent continued to be less than competent in his teaching. Throughout that school year, classroom management was the most obvious deficiency. In particular, students were sleeping and talking to each other and not paying attention, a problem not satisfactorily addressed by Lee. As a result, the learning experience was diminished. Moreover, this circumstance was made worse by the fact that Lee's perception of how to plan for instruction and his efforts at carrying out these plans were not structured in a fashion to hold the attention of his classes and promote the goals announced in the Duval County School course Curriculum for Tenth Grade Language Arts. See Petitioner's Exhibit No. 33. Based upon his unsatisfactory evaluation for the school year 1979-80, and in keeping with the Duval County Teacher Tenure Act, Respondent was transferred to Edward White High School in the school year 1980-81. The principal at that school was John E. Thombleson. Thombleson was aware of the unsatisfactory rating that Lee had received and undertook, during the course of Respondent's stay at White High School, to observe and assist Lee in trying to improve Lee's teaching. That improvement was not forthcoming. Lee continued to have problems related to classroom management and teacher effectiveness and he was not responsive to beneficial ideas of improvement offered by Thombleson related to in-service assistance. Ideas for improvement which were posed to the Respondent include those set forth in Petitioner's Exhibit No. 11, admitted into evidence which is a memorandum concerning a conference held with Respondent by Principal Thombleson. Other exhibits admitted pertaining to observations by Thombleson and other administrators at White are found to be accurate depictions of the atmosphere in Lee's classroom related to management and teaching effectiveness. Through October, 1980, visits to Respondent's classes revealed a lack of attention on the part of students, a lack of preparedness by the Respondent, a failure to proceed in a sequence which would be commensurate with the curriculum goals set for the classes, tardiness on the part of the Respondent and students, failure to provide lesson plans to the administration observer, failure to conform to the scheduled lesson plan for the day, and failure to provide continuity between the lesson of the day and the following day's assignment. These were problems that had been observed during Lee's 1979- 80 year at Fletcher. Consequently, the required interim evaluation of October 30, 1980, was not favorable to Lee. A copy of that formal evaluation may be found as Petitioner's Exhibit No. 18, admitted into evidence and the observations set forth therein are found to be accurate. Lee was also provided with a memorandum on that date, a copy of which is Petitioner's Exhibit No. 19, admitted into evidence. This document suggested ways to improve classroom management, teaching effectiveness and classroom performance. Both the evaluation and memorandum of improvement were discussed with the Respondent and the matters of that conference are set forth in the memorandum of October 30, 1980, a copy of which is found as Petitioner's Exhibit No. 20, admitted into evidence. On November 6, 1980, Respondent's grade book was evaluated and found to be deficient, a finding which is accepted. The grade book was not properly documented, among other shortcomings. Respondent, by correspondence of November 18, 1980, a copy of which is admitted as Petitioner's Exhibit No. 24, requested Principal Thombleson to give concrete examples of expectations of the Respondent in fulfilling his teaching responsibilities. This correspondence was replied to by memorandum of December 5, 1980, a copy of which is admitted as Petitioner's Exhibit No. 25, and contains a continuing explanation of ideas of improvement which had been previously suggested by Principal Thombleson. Lee's performance did not improve after this exchange and the final evaluation at White of March 12, 1981, was not positive. A copy of that evaluation may be found as Petitioner's Exhibit No. 27, admitted into evidence and the evaluation's conclusions are accepted. Overall, in the year 1980-81, Respondent did not perform as a competent teacher while at Edward White. Respondent did not conclude the teaching year at Edward White in 1980- In the face of an attitude which Thombleson considered to be insubordinate and the Respondent's expressed desire to be transferred, Lee was reassigned to William Raines Senior High School in April, 1981. For the remainder of that academic year he served as a substitute teacher. It was not established in the course of the hearing what quality of performance Lee gave as a substitute teacher when assigned to Raines High School and it is therefore assumed that that performance was satisfactory. In the school year 1981-82, Respondent was assigned to Raines High School and acted primarily as a substitute teacher. He remained in the high school for that school year premised upon a settlement negotiation between the Respondent and the Duval County School Board pertaining to an Equal Employment Opportunity Commission complaint which he had filed pursuant to Title VII of the Civil Rights Act of 1964. For the school year 1981-82, the Duval County school administration decided that they would not afford a performance evaluation to the Respondent and none was given. There being no evidence to the contrary, it is assumed that Respondent fulfilled his role as substitute teacher adequately. In the school year 1982-83, Respondent was reassigned to Raines school and worked primarily in the media center program in a nonteaching capacity. Lee did a limited amount of substitute teaching in that year. Jimmie A. Johnson, Principal of Raines school found his work as a substitute teacher to be acceptable as set forth in the memorandum of March 23, 1983, a copy of which is admitted as Respondent's Exhibit B. No contrary position being offered on the question of the quality of performance in the limited role of substitute teacher during that school year, Respondent is found to have performed the role of substitute teacher in a satisfactory manner. Lee's performance as a substitute teacher in the years 1981-82 and 1982-83 while accepted as satisfactory does not overcome the established fact that in the school years 1979-80 and 1980-81, when performing the role of full- time tenured teacher in Duval County, he was not a competent teacher. This performance in the substitute role, while similar, is not sufficiently so to provide a quality of rehabilitation which would set aside the present perception that Respondent is not competent to fulfill the role as full-time classroom teacher in Duval County. This finding is supported by the observations of Dr. Jeffrey Weathers, a professional educator who specializes in teacher evaluations related to their classroom performance as to subject matter and general methodologies. Although some of the tasks which Weathers observed in the Respondent's classroom both at Fletcher and White did not pertain to active instruction, to the extent that other tasks observed called upon Respondent to teach, he was not doing so in an effective manner. As Dr. Weathers described, the vital link between activity and learning could not be found in Lee's classes. Weather's observations, together with those of other professionals at Fletcher and White, coupled with the Respondent's less than cooperative attitude, results in the finding that Respondent has not removed the stigma of his incompetence as a full-time classroom teacher through his teaching in the substitute role at Raines. Finally, while the quality of performance by those students at Fletcher and White who were taught by Lee and participated in the MLST minimum skills tests were similar to students of other teachers in the aggregate, this fact is not enough to set aside the impression of the Respondent's competence. As Dr. Curtis Randolph, who was assistant principal at Fletcher in 1979-80, correctly stated upon reflecting on Respondent's performance, Lee is not competent to teach in Duval County Schools.
