Findings Of Fact Petitioner has been employed as a teacher by Respondent for thirteen years and has taught at the Prosperity Elementary School for the past ten years. She holds a Rank II teaching certificate based on her master's degree. Mr. Johnny Collins, the Superintendent of Schools, recommended that Petitioner be placed in the position of teacher-principal at Prosperity Elementary School for the 1981-82 school year. This recommendation was initially made in May or June, 1981. Respondent School Board rejected the Saunders nomination at its July 20, 1981, meeting. The reasons for the rejection as stated in the minutes are as follows: Mrs. Saunders failure to meet the qualifications of Chapter 231, Florida Statutes; 2) Failure to satisfy the job description as set forth in the approved job description for the Holmes County School Districts, specifically that principals be courteous, diplomatic and cooperative; that principals have leadership qualities; and that principals must be positive but not autocratic in solving problems; 3) failure to cooperate with past principals at Prosperity Elementary School and contributing to the disharmony amongst the personnel; 4) statements of Mrs. Flynn Jones, Tommy Hudson, Gerald Commander and Posie Vaughn. The incumbent Superintendent of Schools and his predecessor, along with five of Mrs. Saunders' previous direct supervisors, testified as to her qualifications. This testimony established that she is a competent teacher and has the necessary leadership ability to serve as a school principal. Her teacher evaluations have, without exception, been satisfactory or above in all areas. Petitioner's supervisor in 1972, Mrs. Flynn Jones, considered her rude and difficult to work with. Mrs. Saunders and Mrs. Jones had been on good terms until Mrs. Jones was appointed interim principal. Saunders, who apparently resented Jones' appointment, thereafter withdrew from her and responded only to formal instructions. Mr. Posie Vaughn has filled the Prosperity Elementary School teacher- principal position since 1978. He and Petitioner were competing applicants for the current school term principalship. Superintendent of Schools Collins, who took office in January, 1981, did not recommend Vaughn, but selected Saunders instead. After the School Board rejected Saunders, and Collins refused to nominate Vaughn, the School Board reappointed him. Mr. Vaughn has experienced the same personal hostility and lack of willing support which Mrs. Jones encountered. Mrs. Saunders, who resented Mr. Vaughn's appointment over her, once contacted the Superintendent of Schools to complain of teacher ratings (other than her own). On another occasion she criticized Vaughn's friendship with the piano teacher to School Board members. Mr. Vaughn testified to his belief that Mrs. Saunders is a troublemaker and not qualified to be principal. However, the ratings he filed on Saunders do not reflect these negative opinions. Further, Vaughn conceded that Saunders is a competent teacher and possesses the ability to lead. Mr. Dan Padgett, principal at Prosperity Elementary School from 1973 to 1976, found Mrs. Saunders to be a capable teacher and a courteous, cooperative employee. This favorable testimony was supported by several co-workers and parents of her pupils. Mrs. Margaret Woodall testified to her dissatisfaction with Mrs. Saunders' treatment of her child. However, her complaint as to Mrs. Saunders' disciplining methods received proper attention and Saunders made the requested change in her approach to the Woodall child.
Recommendation From the foregoing, It is RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools to place Juanita Saunders in the position of teacher-principal, Prosperity Elementary School. DONE AND ENTERED this 6th day of October, 1981, in Tallahassee, Leon County, 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 6th day of October, 1981.
The Issue The issue in this case is whether the application of Petitioner, Kenneth Crowder, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 22, 2005, by Respondent, John Winn, acting in his capacity as the Commissioner of Education.
Findings Of Fact On or about February 28, 2002, the Ohio State Board of Education notified Petitioner, Kenneth Crowder, that it intended to suspend, revoke, or limit his teaching certificate. The proposed action was based on allegations that Petitioner engaged in inappropriate conduct with three female students, engaged in inappropriate conduct with a female teacher in December 2000, and was convicted of disorderly conduct, which was amended from a charge of domestic violence. An administrative hearing was conducted with respect to Petitioner's Ohio teaching certificate on March 11 and 14, 2002. The hearing was conducted in accordance with Chapter 119 of the Ohio Revised Code. Petitioner appeared at the hearing, was represented by counsel, and testified on his own behalf. There were three alleged incidents involving allegations of Petitioner's inappropriate conduct with female students that were litigated during the Ohio administrative proceedings. The first alleged incident occurred during the 1999-2000 school year when Petitioner was employed at Northland High School. The other two incidents allegedly occurred during the 2000-2001 school year when Petitioner was employed as a teacher at Brookhaven High School. The Ohio State Board of Education alleged that during the 1999-2000 school year, while a teacher at Northland High School, Petitioner inappropriately touched Ms. Tranette Nicole Jackson, a student in his science class. At the time of the incident, Ms. Jackson was about fifteen and a high school freshman.3 During the Ohio administrative proceeding, Ms. Jackson testified that on March 21, 2000, Petitioner called Ms. Jackson up to his desk and told her he wanted to see her after class.4 At the end of class, with no one else present in the classroom, Ms. Jackson reported to Petitioner's desk. Petitioner then touched Ms. Jackson's leg and rubbed her skirt, raising the skirt. Petitioner then told Ms. Jackson that he needed to see her in the supply room, which was across the hall from the classroom. Ms. Jackson accompanied Petitioner into the supply room, where Petitioner put both hands on Ms. Jackson's buttocks and stated, "This is what I wanted to talk to you about. Keep it to yourself." Ms. Jackson testified that Petitioner then gave her a pass to her next class. Ms. Jackson testified that she was "confused," "scared," and "uncomfortable" about the incident and that she reported it to one of her teachers that same day. The incident was then reported to the school principal and the Franklin County Children Services. After the incident, Ms. Jackson was reassigned from Petitioner's science class to another class. During the Ohio proceedings, Petitioner testified that he never touched Ms. Jackson, but that he reprimanded her for her inappropriate attire. Petitioner testified that in instances where students had on inappropriate attire, the school policy required teachers to send such students to the front office. Notwithstanding the school policy, Petitioner testified that he spoke with Ms. Jackson alone and after class concerning her attire. This failure to abide by school policy lends credence to Ms. Jackson's version of events. Moreover, Petitioner's complete inability on cross-examination during the instant hearing to provide his version of the incident leads the undersigned to accept Ms. Jackson's testimony.5 In the 2000-2001 school year, Petitioner was transferred from Northland High School to Brookhaven High School (Brookhaven), where he taught ninth grade science. The Ohio State Board of Education alleged that during the 2000-2001 school year, while he was employed as a teacher at Brookhaven, Petitioner engaged in two incidents involving inappropriate conduct with female students and one incident involving inappropriate conduct with a female teacher. In one instance, it was alleged that on December 19, 2000, about a day before the Christmas break, Petitioner asked a female student, identified as Student 2, to come to his room after school and give him a hug. It was alleged that the student refused to comply with Petitioner's request and reported the alleged incident to school officials. Student 2 did not testify at the Ohio administrative proceeding. However, Judith Gore, the assistant principal for student services at Brookhaven, one school official to whom Student 2 reported the incident, testified at the Ohio administrative proceeding. Ms. Gore testified that in January 2001, Student 2 told her that on or about December 19, 2000, Petitioner approached Student 2 and told her to give him a hug after school and that when she came to the room she should not wear her jacket. Ms. Gore also testified that Student 2 reported that although Petitioner approached her and requested a hug in December 2000, Student 2 told her that she reported it in January 2001, soon after and because Petitioner approached her in January 2001, after the Christmas break, and asked why she had not come to his room and hugged him in December 2000, before the winter holiday. Ms. Gore also testified that as a result of Petitioner's comments, the student was extremely uncomfortable. Ms. Gore testified that she later attended a conference with the student's father and Petitioner regarding the incident. Student 2 did not testify at the Ohio administrative proceeding. However, Petitioner testified at the Ohio administrative hearing that he asked Student 2 for a hug on or about December 19, 2000, the day before winter recess. Petitioner testified that Student 2 was in the hallway, and he said to her, "Hey, yeah, give me a hug. It's Christmas time. I wish you a Happy New Year and a Merry Christmas." Petitioner testified that at the time he requested that Student 2 give him a hug, she was not in any of his classes, but was one of his student assistants. In fact, Petitioner testified that when he requested that Student 2 give him a hug after school, she was not in his classroom, but was in the hall at her locker. Petitioner testified that because December 19, 2000, was the day before the Christmas recess, it was not unusual for students to hug him. However, Petitioner testified that Student 2 did not make any overtures indicating she wanted to hug him. Rather, Petitioner testified that he approached Student 2 and asked her to hug him. Based on Petitioner's testimony in the Ohio hearing and the instant proceeding, regarding Student 2, it is found that in December 2000, Petitioner approached Student 2 while she was in the hall at her locker and asked her to give him a hug. Ms. Gore testified that during December 2000, a different female student, Student 3, complained to her that Petitioner had touched her buttocks while passing behind her. Student 3 did not testify at the Ohio administrative proceeding, and no evidence was presented at the Ohio administrative proceeding or the instant administrative hearing to establish this charge. At the Ohio administrative proceeding, the Ohio State Board of Education litigated the allegation that Petitioner had engaged in inappropriate behavior with a teacher at Brookhaven. Mary Williams, who was a co-worker of Petitioner at Brookhaven High School, testified in the Ohio administrative proceeding. Ms. Williams testified that, in December 2000, while she was standing at the counter in the main office of the school, Petitioner passed by and intentionally brushed against her buttocks. Ms. Williams also testified that the office was large enough so that Mr. Crowder needed not to touch her at all. Ms. Williams was upset by Petitioner's actions and informed him, in graphic language, what would happen if he ever did it again. Petitioner then apologized to Ms. Williams. Petitioner's testimony concerning the incident involving Ms. Williams is conflicting. For instance, Petitioner testified during the Ohio proceedings that if he brushed his hand against Mr. Williams' buttocks, it was purely accidental. During the instant proceedings, however, Petitioner acknowledged that he touched Ms. Williams' buttocks, but explained that it occurred accidentally as a result of his carrying a meter stick through the office area. At no time during Petitioner's prior testimony did he mention that the touching occurred with a meter stick, or even that he was carrying a meter stick. Accordingly, the undersigned finds Ms. Williams' testimony to be more credible. John Tornes, the personnel director for Columbus City Schools, testified at the Ohio administrative proceeding that as a result of the accumulation of allegations and incidents, Petitioner was assigned to work at home, effective January 29, 2001. The following day, January 30, 2001, Petitioner was assigned to a location where he had no contact with students. On March 26, 2001, Petitioner resigned from the Columbus City Schools, effective June 8, 2001. Mr. Tornes testified that Petitioner was not eligible for rehire. Mr. Tornes explained: During every year of Mr. Crowder's employment, there was an allegation of sexual harassment or abuse; three straight years of it while at Crestview Middle School [sic],[6] while at Northland High School, and then the incident just kept ballooning at Brookhaven High School. . . . His behavior became so questionable that it was no longer feasible for the district to continue his employment. The Ohio State Board of Education litigated the issue of Petitioner's conviction of disorderly conduct, which was amended from a charge of domestic violence. During the Ohio proceedings, Jill S. Harris testified on behalf of the Ohio State Board of Education. Ms. Harris testified that for about a year, beginning in 1999, she was involved in a rocky relationship with Petitioner. During that period, Petitioner and Ms. Harris were living together. According to Ms. Harris, on October 7, 2000, Petitioner, after a night of drinking, arrived home at approximately 5:30 a.m., at which point a violent argument ensued. During their confrontation, Petitioner struck Ms. Harris twice in the face, bruising her chin and cheek and cutting her lip. At some point during the argument, Ms. Harris summoned the police. However, when they arrived, Ms. Harris informed the responding officers that nothing was wrong due to her fear of retaliation from Petitioner. Ms. Harris testified that after the police left, the Petitioner picked up a glass table and threw it at her, breaking the table. Petitioner also grabbed Ms. Harris, at which point she cut her foot on the broken glass. Ms. Harris then left the house and called the police from the vehicle she was driving. Soon after Ms. Harris called, police officers met Ms. Harris and returned with her to the house where she and Petitioner lived. When they arrived there, Petitioner was not there. Officer Sheri Laverack was one of the police officers who met with Ms. Harris on October 7, 2000, shortly after the incident, and investigated the matter. At the Ohio administrative proceedings, Officer Laverack testified that soon after the altercation between Ms. Harris and Petitioner, she observed that Ms. Harris' "lip had been busted and her face was swelling and the bottom of her foot was cut." Officer Laverack also observed that there was bruising around one of Ms. Harris' eyes. At both the Ohio administrative proceeding and in the instant proceeding, Petitioner denied that he struck Ms. Harris in the face and caused the injuries to her face that were observed by Officer Laverack. However, it is found that his testimony was not found to be credible by the hearing examiner presiding over the Ohio administrative hearing. Petitioner has offered conflicting testimony with respect to the incident involving Ms. Harris and the cause of her facial injuries. During the Ohio administrative proceeding, Petitioner testified that he slammed his hand down on the glass table, causing it to come up and hit her. At no time during the Ohio proceeding did Petitioner testify that Ms. Harris lifted up the table or in any way contributed to the facial injuries she suffered. However, during the instant proceeding, Petitioner testified that when he hit the glass table, Ms. Harris "pulled the top of it up, and I think it [the glass portion of the table] hit her in the chin or something to that effect." Petitioner then testified that "I don't really recall . . . that's what I vaguely recall." Petitioner's testimony concerning the October 7, 2000, incident and how Ms. Harris sustained the injuries to her face is inconsistent and not credible. In light of the multiple injuries to Ms. Harris' face (a cut to her lip, swelling on the right side of her face, and bruising around her eye), it is unlikely that Ms. Harris' injuries could have been sustained in the manner described by Petitioner. Petitioner's testimony in the instant proceeding that he did not hit Ms. Harris is not credible. On the other hand, given the nature of the injuries, it is more probable that Ms. Harris' injuries resulted from Petitioner's hitting her, as she testified. It is found that Ms. Harris' testimony that Petitioner struck her in the face was credible. Moreover, Ms. Harris' credible testimony was substantiated by the testimony of Officer Laverack, who observed the injuries to Ms. Harris on October 7, 2000, shortly after the incident. As a result of the October 7, 2000, incident, Ms. Harris filed domestic violence and assault charges against Petitioner. Ultimately, as a result of the incident, Petitioner was charged with disorderly conduct. On June 25, 2001, Petitioner entered a guilty plea to the amended charge of disorderly conduct. Pursuant to an agreement with the State of Ohio, Petitioner was sentenced to 30 days in jail, with the sentence being suspended if and when Petitioner made restitution of $1,000 to Ms. Harris for the damage to her table. Petitioner paid the restitution. At the time of the Ohio administrative proceeding, Petitioner had a four-year middle school teaching certificate with an expiration date of June 30, 2002, and had applied for a temporary teaching certificate. On April 2, 2002, the Ohio hearing examiner submitted a recommended order to the Ohio State Board of Education. In the recommended order, the hearing officer found that Petitioner sexually abused Ms. Jackson, inappropriately touched Ms. Williams, and committed an act of violence against Ms. Harris. In addition, the hearing examiner recommended that the Ohio State Board of Education revoke Petitioner's teaching certificate and deny his application for a temporary teaching certificate. In a Resolution dated May 16, 2002, the Ohio State Board of Education revoked Petitioner's teaching certificate. The Resolution was adopted by the Ohio State Board of Education at its meeting on May 14, 2002. The Ohio State Board of Education's Resolution stated that it was revoking Petitioner's middle school teaching certificate "based upon his 2001 conviction for disorderly conduct stemming from domestic violence and inappropriate sexual contact with three female students and one female teacher during 2000 and 2001." Petitioner appealed the decision of the Ohio State Board of Education. The Ohio State Board of Education's decision was subsequently affirmed on appeal by the Ohio Court of Common Pleas on August 11, 2003, in Case No. 02CVF06-6230.7 The testimony of Ms. Harris, Ms. Williams, Ms. Jackson, Officer Laverack, Mr. Tornes, and Ms. Gore in the Ohio proceeding constitutes an exception to the hearsay rule under Subsection 90.803(22), Florida Statutes.8 Therefore, the testimony of the foregoing named individuals in the Ohio administrative proceeding is sufficient in itself to support a finding of fact and does not run afoul of Subsection 120.57(1)(c), Florida Statutes.9 Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to brush his hands on the buttocks of a student and of a fellow colleague. The wrong is compounded when the teacher instructs the student to conceal the fact that he engaged in such conduct. During his testimony, Petitioner admitted that he asked a high school student to give him a hug. By any reasonable standard, this conduct fell short of right behavior that defines good moral character. Petitioner's testimony regarding the circumstances and appropriateness of such a request is not credible or persuasive. Neither does Petitioner's explanation provide a reasonable basis for a teacher to solicit a hug from any student. Petitioner's conduct of committing acts of violence against the woman with whom he lived likewise fell short of the reasonable standard of right behavior that defined good moral behavior. The three incidents in which Petitioner engaged in inappropriate conduct with Ms. Jackson, Student 2, and Ms. Williams, occurred at school. The incident involving Ms. Jackson, one of his students, occurred on school grounds in March 2000. The conduct in which Petitioner engaged with Student 2 and with Ms. Williams, his colleague, occurred at school in December 2000. Petitioner's pattern of conduct with two female students and a female teacher demonstrates that he is an unsuitable candidate for a teaching certificate. Moreover, Petitioner's conduct as established by the facts of this case, particularly as it directly involved students at the school, bears directly on his fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality of an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state. The evidence establishes that Petitioner pled guilty and was convicted of the misdemeanor charge of disorderly conduct. The evidence establishes that Petitioner has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. The evidence establishes that Petitioner failed to make a reasonable effort to protect students from conditions harmful to learning and/or to the student's mental health and/or physical health and/or public safety. The evidence establishes that Petitioner intentionally exposed a student to unnecessary embarrassment or disparagement. The evidence establishes that Petitioner exploited a relationship with a student for personal gain or advantage. The evidence establishes that Petitioner has engaged in harassment or discriminatory conduct, which unreasonably interfered in an individual's performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment and, further, failed to make reasonable effort to assure that each individual was protected from such harassment or discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re- application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 24th day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 24th day of May, 2006.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint issued by the Petitioner and dated March 28, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Education is the state agency responsible for investigating and prosecuting complaints against teachers holding Florida educator's certificates for violations of Section 231.2615, Florida Statutes. Section 231.262, Florida Statutes. Pursuant to Section 231.2615(1), Florida Statutes, the Educational Practices Commission is the entity responsible for imposing discipline for any of the violations set forth in Section 231.2615(1), Florida Statutes. Mr. Colebrook holds Florida Educator's Certificate No. 296141. At the times material to these proceedings, Mr. Colebrook was employed as a teacher by the St. Lucie County public school system. Incident of December 21, 1988, and January 6, 1989, letter of reprimand. During the 1988-1989 school year, Mr. Colebrook was employed as a coach and physical education teacher at Fort Pierce Central High School. In a letter of reprimand dated January 6, 1989, then-principal James Sullivan admonished Mr. Colebrook for using profane language in a conversation with an assistant principal, Wayne Gent, outside the school cafeteria, and he noted in the letter that this conduct was a violation of school board policy. Mr. Sullivan did not personally observe the incident involving Mr. Colebrook and Mr. Gent, and his account of the incident was based on information provided to him by Mr. Gent.2 Mr. Sullivan stated in the letter that the December 21, 1988, incident was "not the first time [Mr. Colebrook] had used profane language in the workplace,"3 and, in his testimony at the hearing, Mr. Sullivan inferred from this statement that "there would have been other instances where that had occurred."4 Mr. Sullivan could not, however, recall during his testimony any specific incidents in which Mr. Colebrook had used profanity or any discussions he might have had with Mr. Colebrook regarding such an incident. The incident referred to in the letter of reprimand occurred on December 21, 1988, when Mr. Colebrook engaged Mr. Gent in a conversation about the athletic budget. Mr. Colebrook was upset about the budget, and he may have used profanity during the conversation,5 which lasted a couple of minutes. In his testimony, Mr. Gent declined to describe Mr. Colebrook as "irate" during the encounter. The conversation took place in the corridor outside the school cafeteria during a time when students were changing class, so that there could have been students in the area when the conversation took place. As noted above, the Commissioner charged Mr. Colebrook in paragraph 3 of the Administrative Complaint as follows: "In 1989, Respondent received a letter of reprimand from his Principal for allegedly using profane language outside of the high school's cafeteria. The profane language was directed toward an Assistant Principal and could be overheard by students." It is uncontroverted that Mr. Colebrook received a written reprimand that was placed in his personnel file. The factual allegations in paragraph 3 of the Administrative Complaint, liberally construed, are sufficient to allege not only that Mr. Colebrook received a written reprimand but also that he committed the acts attributed to him in the letter. However, the evidence submitted by the Commissioner is not sufficient to establish clearly and convincingly that Mr. Colebrook actually used profanity or was irate during the conversation with Mr. Gent in December 1988. Mr. Sullivan's knowledge of the incident was second-hand, based solely on information received from Mr. Gent,6 and Mr. Gent's recollection at the hearing that Mr. Colebrook "may have" used profanity during the conversation does not rise to the level of clear and convincing proof. Furthermore, Mr. Gent's testimony describing Mr. Colebrook as "upset" during the conversation contradicts the description in the letter that he was "irate." Incident of March 14, 1990, and March 22, 1990, letter of reprimand. During the 1989-1990 school year, Mr. Colebrook was employed as a coach and physical education teacher at Fort Pierce Central High School. In a letter of reprimand dated March 22, 1990, then-principal James Sullivan notified Mr. Colebrook that an investigation had been conducted by Robert Hiple, an assistant principal at Fort Pierce Central High School, into events that allegedly occurred in Mr. Colebrook's classroom on March 14, 1990. In the letter, Mr. Sullivan reported the results of Mr. Hiple's investigation and relied on Mr. Hiple's conclusion, based exclusively on interviews with students, that Mr. Colebrook had used "profane language in [his] second period class on March 14, 1990."7 According to Mr. Sullivan, Mr. Hiple reported that "a consensus of the students" said that Mr. Colebrook said "'I'm not going to put up with this fucking shit, I'll beat your Mother-fucking ass.'"8 Mr. Sullivan also referred in the letter to information provided by Mr. Hiple that one of the students in Mr. Colebrook's class told Mr. Hiple that she was afraid to admit to Mr. Colebrook that she had accidentally flipped an object in class "after seeing [his] reaction and hearing [his] comments."9 The investigation to which Mr. Sullivan referred in his March 22, 1990, letter was initiated on March 15, 1990, when Mr. Hiple reported to Mr. Sullivan that a parent had complained that Mr. Colebrook had used profanity and threatened a student in the classroom. Mr. Sullivan asked Mr. Hiple to investigate the incident, and Mr. Hiple began by asking Mr. Colebrook for his version of the incident. Mr. Colebrook admitted that there had been an incident but denied using profanity or threatening a student or students, although he admitted that he may have said that "he was going to kick somebody's butt and he challenged a student and yelled at them."10 Mr. Hiple proceeded to gather information about the incident by interviewing students who had been in Mr. Colebrook's classroom at the time of the incident, and his testimony at the hearing was consistent with the information attributed to him by Mr. Sullivan in the letter of reprimand. Mr. Hiple did not testify from his personal knowledge of the incident. On or about March 16, 1990, Mr. Colebrook approached Mr. Hiple and asked about the investigation. Mr. Hiple advised him that Mr. Sullivan would discuss the results of the investigation with him. Mr. Colebrook became "a little loud and aggressive" during this encounter and stated that he did not want to discuss the matter with Mr. Sullivan.11 Mr. Colebrook did not "threaten [Mr. Hiple] physically or even verbally, but he was obviously upset and became loud in an open environment where students could hear."12 In the March 22, 1990, letter, Mr. Sullivan referred to the written reprimand issued to Mr. Colebrook in January 1989 for the use of profanity in the workplace, and he advised Mr. Colebrook that he was recommending to the school superintendent that he be suspended without pay for five working days and administratively transferred to another school for the 1990-91 school year. Mr. Sullivan based the recommendation that Mr. Colebrook be transferred to another school on Mr. Colebrook's comment to Mr. Hiple that Mr. Colebrook did not want to talk with Mr. Sullivan about the results of Mr. Hiple's investigation into the March 14, 1990, incident. In Mr. Sullivan's view, "it creates a difficult working relationship if a principal has a staff person who refuses to sit down and talk with him."13 Mr. Colebrook was suspended without pay for three days, but it was not clear from the record whether he was transferred for the 1990-1991 school year, as requested by Mr. Sullivan. As noted above in the Preliminary Statement, the Commissioner charged Mr. Colebrook in paragraph 4 of the Administrative Complaint as follows: On or about March 22, 1990, Respondent received a letter of reprimand while employed at Fort Pierce Central High School, for allegedly using profane and inappropriate language in class with his students. It was recommended that Respondent be suspended without pay for five days and transferred to another school. The suspension was reduced from five days to three days and Respondent was transferred to Woodland[s] Academy, in the St. Lucie County School District. It is uncontroverted that Mr. Colebrook received a written reprimand based on the conduct alleged in the March 22, 1990, letter from Mr. Sullivan and that Mr. Sullivan recommended in the letter that Mr. Colebrook be suspended without pay and transferred to another school. Giving the allegations in paragraph 4 of the Administrative Complaint the most expansive construction possible, they are sufficient to allege that Mr. Colebrook used "profane language in [his] second period class on March 14, 1990," as recited in the March 22, 1990, letter. However, the evidence presented by the Commissioner is not sufficient to establish clearly and convincingly that Mr. Colebrook actually used profane language as related by Mr. Hiple in his testimony and by Mr. Sullivan in the letter of reprimand. Not only was Mr. Sullivan's knowledge of the incident second-hand, based solely on information received from Mr. Hiple, Mr. Hiple's knowledge of the incident was also second-hand, based solely on information provided to Mr. Hiple during interviews with some of the students in Mr. Colebrook's classroom on the day in question.14 The evidence presented by the Commissioner is, however, sufficient to support a finding that Mr. Colebrook used inappropriate language in front of the students of his second- period class on March 14, 1990, when he said "he was going to kick somebody's butt" and yelled at the students in his class.15 Mr. Colebrook's use of this language in front of students, while inappropriate, did not constitute gross immorality or involve moral turpitude, but it can be inferred from this conduct that Mr. Colebrook's effectiveness as a teacher was seriously reduced in 1990, when the incident took place, at least with respect to his effectiveness in teaching the students in the classroom at the time of his outburst. Because the Commissioner presented no evidence to establish that Mr. Colebrook directed his comment or his yelling to any particular student, the Commissioner has failed to establish that Mr. Colebrook embarrassed or disparaged any student during the incident of March 14, 1990. The evidence is, however, sufficient to establish that Mr. Colebrook's statement to his students that he was going to "kick somebody's butt" and his yelling at the students created a condition in the classroom harmful to the students' learning. Incident of May 8, 2000, Mr. Colebrook's use of profanity, and September 25, 2000, letter of reprimand. Mr. Colebrook was transferred to Woodlands Academy from Fort Pierce Central High School in either 1990 or 1991. During the 1999-2000 school year, Mr. Colebrook taught physical education at Woodlands Academy. In the afternoon of May 8, 2000, Mr. Colebrook was teaching a combined special education class and eighth grade class consisting of approximately 50 students. Toward the end of the class period, a student in the classroom spoke up and said to Mr. Colebrook: "You're a drunk son of a bitch."16 Mr. Colebrook thought it was the student T.S., and he told him to come to the front of the classroom, where Mr. Colebrook apparently intended to discipline him. T.S. did not obey Mr. Colebrook but, rather, slipped out of the classroom door. Mr. Colebrook did not leave the classroom to go after T.S., but he sent a student into the hall to bring him back into the classroom; the student reported that T.S. was not in the hall. About five or six minutes before the end of the class period, T.S. showed up in the office of Lee Haynes, Dean of Students at Woodlands Academy. T.S. told Mr. Haynes that Mr. Colebrook had sent him to the office. Since classes would change in a few minutes, Mr. Haynes decided to keep T.S. in his office until the bell rang, when he would send T.S. to his next class. Mr. Haynes and T.S. sat at Mr. Haynes' desk and talked.17 Just before time for the bell to ring, Mr. Colebrook walked into Mr. Haynes office. When T.S. saw Mr. Colebrook, he stood up and started moving away from him, around Mr. Haynes' desk. Mr. Colebrook moved toward T.S., placed his right hand on T.S.'s shoulder, asked why T.S. had called him a drunk in class, and gave T.S. a shove with the hand on T.S.'s shoulder. The shove was not hard enough to knock T.S. off balance, but, as a result of the shove and of T.S.'s simultaneous movement away from Mr. Colebrook, T.S. "tangled his feet"18 and fell down.19 Mr. Haynes noticed that there were two chairs in the area where T.S. fell, and he assumed that the chairs may have "aided [T.S.'s] fall."20 As Mr. Haynes helped T.S. get back on his feet, Mr. Colebrook made a motion toward T.S., and Mr. Haynes stood between Mr. Colebrook and T.S. Mr. Haynes then took T.S. to the principal's office, where Johnny Thornton, the principal of Woodlands Academy at the time, talked with T.S. T.S. was not injured as a result of the fall, but Mr. Thornton described him as "visibly upset, crying."21 Joseph Hover, a deputy with the St. Lucie County Sheriff's Office who was serving as a school resource officer at Woodlands Academy in May 2000, was a witness to the incident, and he arrested Mr. Colebrook on the afternoon of the incident for misdemeanor battery.22 The criminal case against Mr. Colebrook was concluded on August 21, 2000, when an entry was recorded on the court's progress docket that no information would be filed with respect to the charges against Mr. Colebrook. Several local newspapers printed stories about the incident and about Mr. Colebrook's arrest. Both students and teachers at Woodlands Academy had access to these newspapers, and some of the students at Woodlands Academy were observed actually reading the articles about Mr. Colebrook. In Mr. Thornton's estimation, other teachers at Woodlands Academy were aware of the incident, although Mr. Thornton tried to avoid discussing the incident with either the teachers or the students at Woodlands Academy. In a letter dated May 10, 2000, Mr. Colebrook was advised that an investigation into the May 8, 2000, incident would be conducted by the school system and that he was suspended with pay pending the outcome of the investigation. The final investigative report, dated September 7, 2000, was apparently submitted to the superintendent of schools for St. Lucie County, William Vogel, who prepared a formal letter of reprimand dated September 25, 2000.23 In the letter, Mr. Vogel identified two bases for the reprimand: "The act of pushing or throwing a student to the floor" and "[t]he use of profanity in the presence of students." Mr. Vogel did not identify the source of the information on which he based these charges, although it is inferred that the charges are derived from the investigative report. Mr. Vogel advised Mr. Colebrook in the letter that he would be suspended without pay for five days, that he would be required to complete "coursework in classroom management, stress control or other similar formal training/workshop," and that the complaint would be sent to the state Department of Education.24 After the May 8, 2000, incident, Mr. Colebrook was given an alternate assignment, and he returned to teach at Woodlands Academy in August or early September 2000 for the 2000-01 school year. Mr. Thornton was concerned when Mr. Colebrook returned to Woodlands Academy that some of his effectiveness as a teacher would be undermined by the students' knowledge of the May 8, 2000, incident, but there was no direct evidence that this was indeed the case. As noted above in the Preliminary Statement, the Commissioner charged Mr. Colebrook in paragraph 5 of the Administrative Complaint as follows: On multiple occasions while employed at Woodland[s] Academy, Respondent made inappropriate contact with a student in a violent and threatening manner, and continued to use profane and inappropriate language in front of his students. On May 8, 2000, Respondent threatened a minor student, T.S., pursued the student out of his classroom, and into the office of the Dean of Students at Woodland[s] Academy. In front of Lee Haines [sic], the Dean of Students at Woodland[s] Academy, and Deputy Joe Hover, the School Resource Officer, Respondent physically assaulted the minor student, T.S., by grabbing the student and throwing the student over two chairs, and onto the floor. Respondent then commented to Deputy Hover "This may cost me my job, but no student is going to call me drunk." Respondent was arrested and charged with battery as a result of the incident. The Commissioner has failed to present sufficient evidence to establish the allegations in paragraph 5 of the Administrative Complaint.25 Rather, the evidence presented by the Commissioner is sufficient only to establish clearly and convincingly (1) that, on May 8, 2000, Mr. Colebrook put his hand on T.S.'s shoulder and shoved him and that, as a result of this shove and of T.S.'s movement away from Mr. Colebrook, T.S. fell over two metal chairs in Mr. Haynes' office and (2) that Mr. Colebrook was arrested and charged with battery as a result of the incident. The evidence presented by the Commissioner is not sufficient to demonstrate that Mr. Colebrook's approaching T.S., placing his hand on T.S.'s shoulder, shoving T.S., and, at least in part, causing T.S. to stumble and fall over two chairs constituted gross immorality or involved moral turpitude. However, Mr. Colebrook's actions were harmful to T.S.'s mental health and safety even though T.S. suffered no physical injury. In addition, because he was upset and crying, Mr. Colebrook's actions exposed T.S. to embarrassment in front of Mr. Colebrook, Mr. Haynes, Deputy Hover, and Mr. Thornton. Accordingly, the evidence presented by the Commissioner is sufficient to establish that Mr. Colebrook violated two provisions of the Principles of Professional Conduct for the Education Profession in Florida. Finally, the appearance of news stories about Mr. Colebrook's arrest in the local press can reasonably support the inference that the students and teachers and the community in general were aware of the accusations against Mr. Colebrook with respect to the incident involving T.S. and of Mr. Colebrook's arrest. The Commissioner did not, however, present any direct evidence to establish that Mr. Colebrook's effectiveness as an employee of the St. Lucie County School Board was seriously reduced as a result of the publicity, and such an inference cannot reasonably be drawn, especially since no information was filed against Mr. Colebrook. Mr. Colebrook's shoving T.S., though inexcusable, was not such egregious conduct that it would, of itself, give rise to an inference that his effectiveness as an employee of the St. Lucie County School Board was seriously reduced. In addition, in light of the fact that the Superintendent of Schools for St. Lucie County did not think it appropriate to remove Mr. Colebrook from the classroom, the Commissioner has failed to establish clearly and convincingly that Mr. Colebrook's effectiveness as an employee of the St. Lucie County School Board was seriously reduced as a result of the May 8, 2000, incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Oringen E. Colebrook guilty of violating Rule 6B-1.006(3)(a) and (e), Florida Administrative Code, and Section 231.2651(1)(i), Florida Statutes; dismissing Count I of the Administrative Complaint; and, placing Mr. Colebrook on probation for a period of three years, subject to such reasonable conditions as the Education Practices Commission deems appropriate. DONE AND ENTERED this 1st day of March, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2002.
The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2019.
The Issue Whether or not the Respondent student, Rommel Luis Montes, should be assigned to the J. R. E. Lee Center, an opportunity school.
Findings Of Fact Respondent Rommel Luis Montes, age fifteen, was a student at Riviera Junior High School (Riviera) in Dade County, Florida, during the school years 1984-85, 1985-86, and 1986-87. During the 1984-85 school year Respondent's academic performance was very poor. He received five failing grades, passing only the subject of physical education with the grade of C. Also his ratings for effort during the four marking periods of that year were poor. The result of Respondent's lack of effort and poor academic performance was his not being promoted to the next grade. During the 1985-86 school year Respondent's academic performance was also poor. During that year he received poor ratings for effort, a D as a final grade in five subjects and the grade of F in two subjects. Respondent did not improve his academic performance during the 1986-87 school year. During the first grading period of that year, Respondent received grades of F in three subjects, grades of D in two subjects and one incomplete grade which subsequently was changed to an F. As before, Respondent's rating for effort was poor. Mrs. Carol Ann Golden, a math teacher, had Respondent as a student during the first marking period of the 1986-87 school year. While enrolled in that class, Respondent refused to do any work. Most of the time he would come to class without materials, he would rarely do homework and less than 10 percent of the time did he perform any class work. He had unexcused latenesses and out of forty-five school days he was absent twenty. In efforts to discourage tardiness, Mrs. Golden would issue detentions to Respondent (requiring him to stay in school after hours), but he would either serve them late or not at all, in defiance of school personnel authority. Those times when Respondent was issued indoor suspensions (CSI) as a disciplinary measure, he would refuse to do any work. Mrs. Deanna A. Villalobos, a history teacher at Riviera, also had Respondent as a student during the 1986-87 school year. Here again Respondent's behavior was the same: he would come to class without materials 70 percent of the time, hardly did any homework, performed approximately 5 percent of the work assigned in class, had approximately twenty absences (including one instance when he failed to return to class after lunch), was frequently tardy, would spend his time day dreaming and looking out the window, and as a result failed all the history tests administered. Respondent was also issued detentions by Mrs. Villalobos which he failed to serve. It is the practice at Riviera for teachers and school administrators to submit written reports relative to troublesome student behavior. Such reports are prepared on forms called Student Case Management Referral Forms (SCMRF) and are generally reserved for serious behavior problems. Mrs. Golden and Mrs. Villalobos each issued two SCMRFs on Respondent regarding, inter alia, his total lack of interest in school and failing grade average. In addition Respondent received five other SCMRFs from a different teacher. In addition to Respondent's lack of interest in school, these reports also complained of his skipping class, excessive talking in class, leaving class without permission, and simply refusing to do any work in class. As a counselor at Riviera, Mrs. Waizenhofer worked on a weekly basis with Respondent. From her testimony it was apparent that Respondent, although not a bad kid, was disinterested in school and was not responding to the various techniques used by teachers, counselors and administrators to make students more interested and improve their academic performance. During one counseling session Respondent, while in tears, promised Mrs. Waizenhofer to improve his school effort just a little. Twenty minutes later, Respondent was caught cutting class. One attempt at interesting Respondent in school, was to place him in the work experience program at Riviera. This consisted of securing employment for Respondent at Burger King on a part-time basis. Respondent was not able to hold the job for more than two weeks and he failed the program. Mrs. Thomas, assistant principal, and Mrs. Waizenhofer had numerous conferences with Respondent's mother. The parent, however, was not able to cause a change in Respondent's attitude toward school. It was recommended to both Respondent and his parent that assistance be sought at different community agencies, which could provide specialized counseling services at little or no cost. Despite the efforts made by the school administrators, no change was noted in Respondent. At Riviera, like other schools with regular school programs, the average number of students in a class is about thirty. Such schools are not geared to address peculiar student needs or provide individual students with continuous special attention. By contrast, at an opportunity school, such as the J. R. E. Lee Center, the ratio of teachers to students is about nine-to- one, students are the subject of individualized educational plans, and there are more counselors on staff, including a psychologist. The expert opinions of both Mrs. Thomas and Mrs. Waizenhofer was that the more structured environment at an opportunity school would be better for Respondent, as opposed to permitting him to remain in a regular school program where he was making no progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order affirming the assignment of Respondent Rommel Luis Montes to the J. R. E. Lee Center. DONE AND ORDERED this 17th day of March, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 17th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0294 Petitioner's proposed findings of fact 1-12, have been adopted in paragraphs 1-12, respectively. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Estrella Montes 10030 Southwest 43rd Street Miami, Florida 33165 Dr. Leonard Britton, Superintendent Dade County Public Schools The School Board of Dade County, Florida 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building, Suite 301 1450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether petitioner's assignment of Antonio Doll to an alternative educational program is justified on grounds of his "disruption of the educational process in the regular school program and failure to adjust to the regular school program?"
Findings Of Fact Antonio Doll's career at Norland Senior High School in Miami was not an unqualified success. On May 24, 1984, he was suspended for ten days after attempting to sell marijuana he had in his possession. About a month earlier, on April 25, 1984, his misconduct in the classroom had been called to the school administrator's attention, and had resulted in a parental conference with school authorities. On March 7, 1984, he was suspended for ten days because of vandalism. This came after parental conferences on January 30, 1984, occasioned by insubordination in the classroom, and on December 9, 1983, after classroom misconduct and an episode of truancy. Antonio Doll was referred to the school administrator seven times in eight months. As of January 25, 1984, his academic grades were worse than his conduct marks. He was failing five subjects and had a D in a sixth. Only in industrial arts was he doing better than D work.
Recommendation It is, accordingly, RECOMMENDED: That petitioner assign Antonio Doll to the opportunity program at Douglas MacArthur Senior High School-North. DONE AND ENTERED this 31st day of January, 1985, in Tallahassee, Florida. ROBERT T. BENTON II 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 31st day of January, 1985. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza Suite 800 3050 Biscayne Blvd. Miami, Florida 33137 Mr. and Mrs. Collier 2560 N.W. 161 Street Opa Locka, Florida 33055 Ralph D. Turlington Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The issues for determination at the final hearing were: 1) whether the Respondent should be dismissed from employment due to incompetency; and 2) whether the conflict in the statute cited in the Notice of Charges dated November 18, 1982, and the Notice of Hearing dated June 18, 1983, constitute inadequate notice to the Respondent Muina of the charges against him. At the final hearing, Marsha Gams, a learning disability teacher at Carol City Junior High School, Rosetta Vickers, Director of Exceptional Student Education, Dade County School Board, Carol Cortes, principal at Carol City Junior High School, Karen Layland, department chairperson of the Exceptional Education Department at Carol City Junior High School and Desmond Patrick Gray, Jr., Executive Director of Personnel, Dade County School Board, testified for the Petitioner School Board. Petitioner's Exhibits 1-13 were offered and admitted into evidence. Yvonne Perez, Bargaining Agent Representative, United Teachers of Dade, Alexander Muina and Desmond Patrick Gray, Jr., testified for the Respondent. Respondent's Exhibits 1-5 were offered and admitted into evidence. Subsequent to the hearing, the Respondent requested via telephone conference call, that Respondent's Exhibit 6, the published contract between the Dade County Public Schools and the United Teachers of Dade, be admitted into evidence as a late-filed exhibit. The contract was admitted over Petitioner's objection. Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted. On July 11, 1983, the Petitioner filed objections to the Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Penalty. Certain of the Petitioner's objections were subsequently stipulated to by the Respondent and are not in issue in this proceeding.
Findings Of Fact The Respondent Alexander Muina has been employed by the Dade County School System for approximately nine years. He initially worked with regular students, then worked as an assistant teacher with profoundly mentally handicapped students. During the 1979-80 school year, the Respondent became a permanent substitute in a class for the trainable mentally handicapped. He held this position for approximately two months and during that period received a satisfactory annual evaluation. During the 1980-81 school year the Respondent was assigned to the "ESOL" Program which is an acronym for English for Speakers of Other Languages. During this period, the Respondent taught as an itinerant teacher at three different schools each week. One of the schools the Respondent was assigned was Carol City Junior High School, where he taught on Thursdays and Fridays, as part of the Entrant Program. This was a program which was established for the approximately 13,000 children who had entered the Dade County School System during the Mariel boat lift. Mrs. Carol Cortes, principal at Carol City Junior High School, compiled the Respondent's annual evaluation for 1980-81 after consulting with the two other principals to whose schools Respondent was also assigned. At that time, Respondent received an acceptable annual evaluation from Cortes; however, Cortes had not continually observed the Respondent or had continuous direct contact with him since he was only at the school two days a week. At the close of the 1980-81 school year, the Respondent asked Cortes if there was an opening in exceptional education in which he could be placed. Toward the end of the summer a position became available in varying exceptionalities, an area in which the Respondent is certified by the State of Florida, and he accepted this position. A varying exceptionality class includes students who have three types of learning disabilities or exceptional problems, including the educable mentally handicapped, the learning disabled, and the emotionally handicapped. Although the Respondent is certified by the State of Florida to teach varying exceptionalities, during his first year instructing the class the Respondent experienced significant problems which are reflected in his evaluations of November, January and March of the 1981-82 school year. The first observation of Respondent as a varying exceptionalities teacher was done on November 5, 1981, by Carol Cortes, principal. The Respondent's overall summary rating was unacceptable in the areas of preparation and planning and classroom management. Individual Education Plans (IEPs) for each of the students were not being followed. The Respondent was not using the IEPs to develop activities for the students which would meet the goals of providing "diagnostic prescriptive teaching." Using the IEPs and the diagnostic prescriptive teaching techniques is crucial to the success of exceptional educational students. The students were not being taught according to their individual abilities, but rather were doing similar classroom work. Additionally, classroom management was lacking in that the Respondent did not formulate adequate behavior modification plans for the students who were observed talking and milling about the classroom. Following her first observation, Cortes offered assistance to Respondent, including changing his physical classroom layout and placing him with the department chairperson. This was done so that the chairperson could assist in developing the activities and plans necessary for the students and could also provide support in developing behavior modification plans. Cortes also asked the school psychologist to work with the Respondent in establishing such plans. Dr. Gorman, the assistant principal, had frequent informal observations of the Respondent in an attempt to help him with his classroom difficulties. The next formal observation of Respondent was performed by Cortes on January 20, 1983, and the overall summary rating was again unacceptable in the areas of preparation and planning, classroom management and techniques of instruction. Preparation and planning was unacceptable because the Respondent was still not following the student's IEPs. He continued to assign the same general activities to all students regardless of individual differences. His class was confused regarding their goals. Because the Respondent was not teaching toward the objectives set forth in the IEPs, the children were not achieving a minimum education experience. The Respondent was marked unacceptable in classroom management because he did not have adequate control over the students. Students were walking around the class and the class was generally noisy The work that the Respondent did with individual students was in the nature of giving directions rather than actually teaching. In order to teach it is necessary to provide students with new concepts and provide teacher input rather than simply monitor students. The Respondent was marked unacceptable in techniques of instruction because his lesson planning was deficient. He spent the majority of time in the classroom attempting to discipline students. His grade book was kept in an inappropriate manner and the students were frustrated. As a result of these problems, Cortes requested that the Respondent visit a program at Madison Junior High School which had an acceptable behavior modification program in place. The Respondent visited the program on January 26, 1982; however, no substantial improvement after the Respondent's visit was noted. The Respondent also took a reading course in late January, 1982. No significant improvement was noted following completion of that course. In January of 1982, a social studies position at Carol City Junior High School became available. Cortes offered that position to the Respondent and he could have transferred into the social studies department if he had so desired. The Respondent, however, elected to remain in the field of exceptional student instruction. At that time, Cortes felt that the Respondent was attempting to deal with his deficiencies and he should be given the opportunity to correct the problems with his class. Mrs. Vickers, Director of Exceptional Student Education for Dade County Schools, made a routine visit to Carol City Junior High School on January 27, 1982. She had heard from one of her education specialists that there were difficulties in classroom management in the Respondent's classroom. She observed that many of the students were not on task in that they walked around the classroom, talked out loud, and called the Respondent "pops". A few of the students tried to work, but the noise level in the class was so high it was disruptive. Vickers chose not to do a formal observation at that time, because she felt that there were many areas that she could not have marked acceptable. Instead, Vickers chose to do a planning session with Respondent on that same date. At the planning session, Vickers discussed with Respondent such topics as getting the students on task, bringing supplies and materials, completing assignments and doing homework. She discussed IEPs with the Respondent and the minimal skills tests that the children are administered in grades 5, 8 and 11. She explained to the Respondent how to use a grade book and examined the student's work folders. Although the folders contained significant amounts of work, the work did not correlate with the objectives on the children's IEPs. Vickers was also concerned that the Respondent was monitoring the class rather than directly instructing the students on specific skills. He did not pull individual students or groups aside for direct instruction. Vickers returned to the Respondent's classroom on February 25, 1982, in order to conduct a formal observation. At that time, Vickers gave the Respondent an unacceptable overall summary rating. She found him deficient in the categories of classroom management, techniques of instruction, assessment techniques, student-teacher relationships, and acceptable in the category of preparation and planning. She rated the Respondent unacceptable in classroom management because a serious problem existed with the management of his students who were not on task. The students were not working in an orderly fashion and the class was so loud that it distracted the class on the other side of the room. When Vickers tried to speak with the teacher in the adjoining room, the noise level in the Respondent's class prevented a successful conversation between them. Due to these problems, the Respondent's students were not receiving a minimum education experience. Children with learning disabilities are easily distracted by visual or auditory interference; this problem was occurring in Respondent's class. Vickers rated the Respondent unacceptable in techniques of instruction since he was not using the diagnostic prescriptive teaching method that is required in the Dade County School System. Respondent was not utilizing small groups to give specific help with skills, but was instead, monitoring. Vickers also rated the Respondent unacceptable in assessment techniques. Exceptional education teachers are required to do a profile on each student showing the skills that the student has met and the skills that the student needs to improve. The Respondent did not meet this requirement. Finally, Vickers found the Respondent unacceptable in student-teacher relationships since she observed that the students showed an unacceptable level of respect for the Respondent. Vickers suggested that the Respondent visit three other exceptional education teachers along with regular teachers in school. She also scheduled an assertive discipline workshop for exceptional education teachers and asked that Respondent attend. The Respondent however, did not attend the workshop. On March 25, 1982, Cortes completed Respondent's annual evaluation for 1981-82 and recommended nonreappointment. This annual evaluation took into consideration all of the observations done by administrators in the building. She found the Respondent unacceptable in the categories of preparation and planning, classroom management, and techniques of instruction. Cortes next observed the Respondent on May 17, 1982, and again gave him an overall summary rating of unacceptable. She found him unacceptable in the categories of preparation and planning and classroom management. Preparation and planning was unacceptable because the Respondent was not following the IEPs for the students. Cortes observed that the Respondent misspelled a word on the black board and the students copied his misspelling. Classroom management remained unacceptable because most of the class was not working. The Respondent continued to have difficulties controlling his students who continued to address him inappropriately by calling him "pops". As the Respondent moved from student to student, the remainder of the class was either talking or milling about the room. Respondent did not have understandable classroom rules and resultant consequences for breaking such rules. Rather than institute positive rewards for students who met the classroom criteria, his emphasis was on negative reinforcement. Following Cortes' discussion with the Respondent as to these deficiencies, she continued to see minimal improvement. It was also recommended that the Respondent visit Mrs. Layland, the department chairperson, to observe her classroom management techniques. Layland had a behavior modification plan in place and was able to work individually with each student while other students remained on task. The Respondent did visit Mrs. Layland's class but there was no significant improvement following that visit. On May 24, 1982, Cortes performed a second annual evaluation on the Respondent in which she found him unacceptable in one category, preparation and planning and acceptable in the remaining categories, but did not recommend him for reemployment. The second annual evaluation had only one unacceptable category, preparation and planning, and overall Respondent was rated unacceptable. However, the area in which the Respondent was rated unacceptable is especially important in the context of exceptional education. Preparation and planning is an important aspect of this field since planning for exceptional education students must be done on an individual basis. Additionally, the teacher has to plan what each student will be learning over a given period of time, and such planning is necessary in order to successfully instruct these students. Notwithstanding the Respondent's improvement, Cortes moved for his nonreappointment at the conclusion of the 1981-82 school year. The Respondent, however, was reappointed for the 1982-83 school year, when it was determined that the documentation upon which the nonreappointment was to be based was insufficient due to noncompliance with the existing union contract. Prior to the completion of the 1981-82 school year, the Respondent, through his area representative, Yvonne Perez, requested a transfer back into a regular classroom where the Respondent could teach Spanish or Social Studies. This was based on the Respondent's recognition that he was encountering extreme difficulties in teaching varying exceptionalities. Patrick Gray, Personnel Director for the Dade County School System, was aware of the request for a transfer on behalf of the Respondent and agreed to consider it. Gray subsequently determined not to transfer the Respondent, and reassigned him to his existing position. Following his assignment back to Carol City Junior High School, Cortes began to formally observe the Respondent. The first such observation of the 1982-83 school year occurred on September 13, 1982, less than one month after teachers had returned to school. Cortes observed the Respondent and documented an observation sheet with five attached papers. Observations performed the previous year had included only one statement. Approximately one month later, Cortes conducted another observation with four detailed attachments. The documentation provided to the Respondent in September and October of 1982 was accumulated to verify or affirm the decision which was made by Cortes in May of the prior year, to terminate the Respondent. Based on Cortes' observations of the Respondent while he was employed at Carol City Junior High School, she would not recommend him for a teaching position in any other field. According to Cortes, the Respondent is lacking the basic skills necessary to be a successful teacher. Marsha Gams, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1981-82 school year and Respondent's supervisor, met with the Respondent on numerous occasions during the course of his assignment to Carol City Junior High School. Although Gams saw improvement on Respondent's part during the period that she observed him, the improvement was not significant. Based on Gams' observation of the Respondent's class, she felt that the Respondent's students were not receiving a minimum education experience since the Respondent did not have an adequate grasp of the curriculum and materials required for the learning disabled and educable mentally handicapped students. The Respondent's class eventually affected Gams' students due to the noise level which came from his adjoining class. Karen Layland, chairperson of the Exceptional Education Department at Carol City Junior High School during the 1982-83 school year, also worked with the Respondent. They had joint planning periods and spent a number of afternoons reviewing lesson plans, methods, curriculum, and matching materials to IEP objectives. According to Layland, the Respondent's basic problem was that he did not clearly understand the requirements of teaching varying exceptionalities Layland did not observe significant academic progress in the Respondent's class. The Respondent's grade book was disorganized and the materials contained in the student's folders were not appropriate for the particular students. Moreover, there was a lack of organization in his classroom in that students left class without permission. Although Layland felt that the Respondent was well intentioned, he did not have an adequate grasp of the curriculum, teaching management and behavior management that are necessary in an exceptional education setting. Even if Layland had been allowed to continue to work with the Respondent for the remainder of the school year, she did not feel that he could have been brought up to a competent level to teach varying exceptionalities during that period of time. Based on her observations, Layland believed that the Respondent's students were not receiving a minimum education experience due to the Respondent's lack of definite knowledge of methods in instructional techniques for varying exceptional students. By November, 1982, the School Board had made a determination that the school system had exhausted its remedies to raise the Respondent's performance to an acceptable level. Although the Respondent had obtained an acceptable rating from Cortes at the end of the 1982 school year, even this evaluation demonstrated a serious deficiency on Respondent's part. Additionally, during the 1981-82 school year the Respondent encountered numerous significant problems which had not been adequately remediated in order to permit him to continue teaching varying exceptionality students. The school board administration declined Perez' request that the Respondent be transferred into a regular class on the belief that the Respondent was incompetent in basic classroom instruction. However, based on the Respondent's teaching record prior to his employment at Carol City Junior High School, the Respondent encountered difficulties only when he was teaching varying exceptionalities, and in other fields, his basic skills were documented as acceptable. At all material times, the Respondent was employed as an annual contract teacher and did not hold a professional service contract.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner Dade County School Board affirming the dismissal of the Respondent. DONE and ENTERED this 26th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 26th day of September, 1983.
The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
The Issue The central issue in this case is whether Respondent is guilty of the conduct alleged in the Notice of Specific Charges and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner is authorized to operate, control and supervise all public schools within the School District of Dade County, Florida. At all times material to the specific charges in this case, Respondent, Norris L. Barker, was employed by Petitioner as a teacher with the Dade County school system. Pursuant to a one-year contract, the terms of which are not in evidence, Respondent was employed in September, 1987, as a math teacher at Miami Southridge Senior High School (Southridge). During the spring of 1987, prior to his employment with Petitioner, Respondent wrote to several school systems offering to donate Xerox memorywriters to the respective schools through a fund raising project which the various school systems were requested to endorse or promote. It was Respondent's goal to raise $8 million to be used to purchase the equipment. The Dade County Public Schools, through the then Superintendent, declined to endorse the fund raising project. After Respondent became employed with the Petitioner, he continued with his plan to raise money for education. Eventually, the project became known to Mr. Rodgers, the principal at Southridge, who advised Respondent that the school could not sanction the fund raising activities and that Respondent would have to obtain permission from a higher administrative source. Respondent did not receive permission to utilize the school name or the endorsement of the school district. As principal, Mr. Rodgers routinely makes informal observation visits to classrooms. These visits are intended as an informal review of the particular class or teacher. The duration of such visits is generally brief, lasting only a few minutes, and no written report or evaluation is made as a result of such visits. During Respondent's time at Southridge, Mr. Rodgers made several such informal visits to Respondent's class. Mr. Rodgers determined, as a result of the informal visits, that Respondent needed assistance with classroom management. This was indicated due to the number of students who were "off task" in Respondent's class. Mr. Rodgers felt that Respondent needed help in finding ways to keep the students working, not talking. On November 23, 1987, Respondent wrote a letter to Mr. Rodgers which expressed Respondent's concern that discipline problems among the ninth graders would adversely affect their performance on the SSAT. Apparently, Respondent believed the disruptive behavior of a few students was adversely influencing the learning conditions for the rest of the class. On November 24, 1987, William Machado, assistant principal in charge of the math department, performed a formal observation of Respondent. This observation was in accordance with the teacher assessment and development system and recorded Respondent's deficiencies in several specific areas of performance. It also provided a prescription plan for performance improvement which offered constructive comments to assist Respondent in deficient areas. Of the six areas evaluated, Mr. Machado found Respondent had problems and was deficient in four: knowledge of the subject, preparation and planning, classroom management, and techniques of instruction. Respondent was required to complete the prescription plan activities before January 11, 1988. All four of the prescription plan activities required Respondent to refer to the Prescription Manual which was available to Respondent. Further, with regard to Respondent's lesson plans, he was to seek the assistance of Jean Freedman, the math department head. Respondent talked briefly with Ms. Freedman and she offered him the benefit of her lesson book as an example of the type of plan Mr. Machado wanted Respondent to provide. As a means of further assistance, Respondent was to visit peer teachers' rooms to observe how the suggested activities might be incorporated into the teaching setting. Respondent did not submit the lesson plans in accordance with the prescription for performance improvement. There is no evidence as to whether or not he visited peer teachers' rooms. He did not observe Ms. Freedman's class as recommended. In the period immediately following Respondent's formal evaluation, he was absent from school a number of days the total of which exceeded his authorized sick leave. On December 19, 1987, Respondent climbed a 150 foot Southern Bell relay tower located on private property. It was Respondent's stated intention to remain atop the structure to raise $8 million for education. Respondent left a note stating that if the money were not raised by January 4, he would "meet God." Respondent did not have provisions for an extended stay. He was dressed in short pants, tennis shoes and a short-sleeved shirt. The weather conditions that evening were quite cool. Officer Collins responded to a call regarding Respondent's presence atop the tower. He unsuccessfully attempted to talk Respondent into coming down. When his efforts failed, Officer Collins requested negotiators who then talked with Respondent for several hours in further effort to have him voluntarily come down. These efforts also failed. After some four hours, the SWAT team came in to remove Respondent from the tower. Members of this team scaled the tower from Respondent's blind side and forced Respondent into the bucket of a fire truck extension ladder. Afterwards, Officer Collins took Respondent to the crisis intervention center where he was involuntarily committed for observation. He was released following a two day period of observation. The incident of Respondent's tower climbing was widely published in Miami newspapers and received coverage on local radio and television stations. These accounts of the incident identified Respondent as a Dade County high school teacher and, in some instances, identified Southridge. As a result of the media coverage, Mr. Rodgers received telephone calls from concerned parents and teachers regarding Respondent's conduct. On January 7, 1988, Mr. Rodgers recommended that Respondent be dismissed from employment at Southridge. The recommendation was based upon Respondent's performance in the classroom (TADS observation 11/24), Respondent's lack of professional judgment as shown by his conduct on December 19, 1987, the concerns expressed by parents and students regarding Respondent's emotional and mental fitness to regain control of students assigned to his classes, and the degree of public notoriety given to the incident of December 19. When Respondent attempted to return to Southridge on January 6, 1988, he was referred to the Office of Professional Standards and has not returned to the classroom.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board of Dade County enter a final order confirming the administrative decision to terminate the employment of Respondent for just cause stemming from his misconduct in office. DONE and RECOMMENDED this 21st day of November, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 21st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0599 Rulings on Petitioner's proposed findings of fact: Paragraph 1 is accepted to the extent that it provides Respondent was employed by a one year contract and assigned to Southridge. It is presumed the year intended was the entire 1987-88 school year. Paragraphs 2-6 are accepted. Paragraph 3 is rejected to the extent that it concludes Respondent did not try to improve. While the evidence established Respondent did not complete lesson plans as requested, there is no evidence that he did not try to do so. Also, while he did not visit Mrs. Freedman's class, he may have visited other master teachers for assistance. The record does not establish whether or not he could have met the prescriptions had he not been absent or had he been able to return after the holidays. Paragraph 8 is accepted. Paragraph 9 is accepted. Paragraphs 10, 11, 12, 13 and 14 are accepted. Rulings on Respondent's proposed findings of fact: Respondent's paragraphs while not identified as findings of fact will be treated as such and considered in order as presented. The first paragraph is rejected as argument, or conclusions unsupported by the record. The first two sentences of the second paragraph are accepted. The remainder of that paragraph is rejected as speculation, unsupported by the record in this cause. With regard to the numbered paragraphs the following rulings are made: Paragraph 1 is rejected. While it is clear that the evaluation cannot be considered proof of Respondent's inadequate knowledge of the subject matter, there is no evidence as to how the computation was made to reach that conclusion (the TADS criteria) nor is there evidence that Mr. Machado was "over zealous." The deficient area was one of four which Respondent would have had to work on had he chosen to refrain from other conduct which further eroded his effectiveness as a teacher. Paragraph 2 is rejected as unsupported by the record. Paragraph 3 is rejected as argument, unsupported by the record. Paragraph 4 is accepted. Paragraph 5 is rejected as, contrary to the weight of the evidence. Paragraph 6 is accepted only to the extent that it suggests the fund raiser was not done in the name of the school or the board. When a private interest is pursued, the teacher must take reasonable steps to assure that the activity is not associated with the employer. To the extent that failing to take reasonable precaution would lead to public notoriety and adverse publicity, Respondent is accountable. Paragraph 7 is rejected as comment, argument or contrary to the evidence admitted in this cause. There is, however, no finding that Respondent wrongfully utilized the school name or misrepresented the board's interest in his project. Paragraph 8 is rejected as contrary to the weight of the evidence. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is rejected as conclusion or argument. No finding has been made to suggest Respondent suffers from a mental illness. Paragraph 11 is rejected as conclusion or argument. Paragraphs 12-17 are rejected as conclusions or argument in some instances unsupported by the record or contrary to the weight of the evidence presented. COPIES FURNISHED: Norris L. Barker 420 Northeast 18th Avenue, Unit #9 Homestead Florida 33030 Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Mrs. Madelyn P. Schere Assistant School Board Attorney School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399 Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools School Board Administration Building Annex 1550 North Miami Avenue Miami, Florida 33136
Findings Of Fact Respondent attends Thomas Jefferson Junior High School. With the exception of band class which he attends regularly and achieves high marks, his absentee rate (unexcused) is approaching 50 percent and he is receiving failing grades. He is frequently disruptive in class and disrespectful to his instructors. He regularly comes late to his classes or leaves before being excused. Petitioner has made frequent attempts to assist Respondent. All available counseling and disciplining techniques have been used without success. Respondent will be 16 years old in September and intends to withdraw from school at that time. Respondent and his mother seek his release from mandatory school attendance now so that he may begin vocational training. School officials agree that this is appropriate, but the application has not been completed due to communication problems between Mrs. Perez and Thomas Jefferson Junior High School.
Recommendation From the foregoing, it is RECOMMENDED that Petitioner enter a final order assigning Respondent to its opportunity school pending release from mandatory school attendance. DONE AND ENTERED this 19th day of June, 1984, at 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 19th day of June, 1984. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Sylvia Perez 460 Northwest 125 Street Miami, Florida 33168 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
