The Issue Whether Respondent's employment should be terminated, as recommended by the then-Interim Superintendent of Schools, and, if not, whether Respondent (who has been suspended without pay pending the outcome of this dismissal proceeding) should be reinstated with "back salary."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, including the stipulations of the parties, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Broward County, Florida, including Plantation Middle School (Plantation). Jean Jones is now, and has been since the beginning of the 1998-99 school year, the principal of Plantation. The 1998- 99 school year was her first as a principal of any school. She had served as an assistant principal for seven years before becoming Plantation's principal. Thomas Fegers is now, and has been since 1993, an assistant principal at Plantation. Milton Roseburr is now, and has been since August of 1995, an assistant principal at Plantation. At all times material to the instant case, Carol Mendelson has been an assistant principal at Plantation. Respondent is a veteran educator. He has been teaching since 1964. Respondent has been employed by the School Board as a teacher since 1975. He holds a continuing contract of employment, which provides, in pertinent part, as follows: The Teacher agrees to teach the full period of service for which this contract is made, in no event be absent from duty without leave or to leave his position without first being released from this contract by the School Board, to observe and to enforce faithfully the laws, rules regulations, and policies lawfully prescribed by legally constituted school authorities insofar as such laws, rules, regulations, and policies are applicable to the position held by him. The Teacher agrees that the last salary payment in each academic year may be withheld upon proper notice to the Teacher as to the reasons for said withholding if all duties have not been performed as required by law and regulations of the School Board and the State Board of Education. The services to be performed hereunder shall begin on the beginning date shown above [August 23, 1978] and thereafter as determined by the School Board and are to be performed in the position and school as assigned from time to time by the said School Board. . . . 8. This continuing contract of employment shall remain in full force and effect from year to year, subject to all the provisions herein set forth, unless modified by mutual consent in writing by the Parties hereto, except the teacher may be suspended or removed for cause as provided by law. The Teacher agrees that he may not be entitled to receive any salary from and after the date of such suspension or removal unless such suspension is revoked and in no event shall the Teacher be entitled to any compensation subsequent to the cancellation of this contract. This contract may also be terminated by the written resignation of the Teacher submitted not later than four (4) weeks before the close of the post-school conference period, to take effect at the end of the school year. Such resignation shall be submitted in substantially the form hereto attached described as Exhibit A, and by reference made a part hereof. . . . Failure of either party to fulfill the obligations under this contract, and to carry out the lawful provisions hereof, unless prevented from so doing by reason of personal illness of the Teacher or as otherwise provided by law, shall constitute sufficient grounds for the termination of this contract by the other party, provided, however, no termination shall be effective without reasonable notice and, if timely requested by the Teacher, hearing. The contract shall at all times be subject to any and all laws and all lawful rules and regulations, and policies of the State Board of Education and the School Board now existing or hereafter enacted. . . . 14. This contract may be changed or modified only by an amendment in writing executed in the same fashion as the original or by a collective bargaining agreement ratified by the School Board and bargaining agent. No person, officer or employee may modify the provisions of this agreement or make any other contract with the Teacher for and on behalf of the School Board without expressed ratification by the School Board. Provided, however, in accordance with paragraph two hereof both parties agree that this contract shall be modified by the adoption of a subsequent salary schedule as provided in paragraph two and that adoption of such amended salary schedule by the School Board shall constitute expressed ratification. At all times material to the instant case, Respondent was a classroom teacher at Plantation. For the three school years immediately preceding Ms. Jones' arrival at Plantation (the 1995-96, 1996-97, and 1997-98 school years), Respondent was supervised and evaluated by Mr. Roseburr. During this period of time, Respondent had an extremely difficult and challenging teaching assignment. He taught a "self-contained" class of sixth, seventh, and eight grade "drop out prevention" students. "Drop out prevention" students generally struggle academically, lack motivation and focus, have short attention spans, are easily distracted, come to class ill-prepared, do not complete all of their classwork, and are unruly and disruptive in class. Respondent and these "problem" students remained together in the same classroom the majority of the school day, with Respondent providing the students with instruction in all of their academic subjects. Because conventional teaching and behavior management methods did not always work with these students, Respondent needed to be creative and innovative to effectively discharge his classroom duties. Mr. Roseburr was in Respondent's classroom on a daily basis during the three-year period he supervised Respondent. Impressed with Respondent's performance and his "unique knack of knowing what to say and how to say it to students that are difficult," Mr. Roseburr gave Respondent satisfactory evaluations each of the three school years Respondent was under his supervision. The first quarter of the 1998-99 school year, Respondent had the same teaching assignment he had had the previous three school years, notwithstanding his expressed desire to have his assignment changed. In or around September of 1998, Respondent spoke with Ms. Jones about the possibility of having a parent volunteer (Sybil Moton) assist him in the classroom. Shortly after his discussion with Ms. Jones, Respondent sent her the following letter, dated September 14, 1998: I have been assigned to teach 6th, 7th & 8th grade self-contained D.O.P. for several years. I have been doing this at a great disadvantage. There are many Teachers, Team Leader and Department Heads, at this school who would not accept this assignment or be successful with it. I have accepted this assignment and I'm ready to do the best job I can under the circumstances. I have to plan for three grade levels, while other teachers only plan for one. I have to prepare for five subjects, while other teachers only prepare for one. I have five subject area meetings to attend, while other teachers only have one. I have not read any research that support[s] the notion that a teacher, who has as many duties and responsibilities as have been placed upon me, will be more successful or as successful as a teacher, who teaches one subject area or one grade level. Does the research indicate that children placed in this kind of class situation, will be more successful than in the traditional class situation? Is it possible that the children might be at a disadvantage? Each of the previous times when I requested an assistant, I was denied. It was all about money. Now when I ask a parent to help "FOR FREE," I'm told, "I don't think I'll be able to approve Ms. Moton as a parent volunteer." All I'm saying is that, now that I have been loaded down with all of the above, where is the help that goes with it? As of now, I feel that I have been placed in a situation that is headed for failure, and that's not me. I want to be successful at whatever I do, that's why I keep asking for help. These children need so much help, and I want to help them very badly. My difficulty comes from the situation I've been placed in, more so tha[n] the children I work with. After receiving the letter, Ms. Jones circled the last sentence of the fourth paragraph of the letter, and, on the upper right hand corner of the letter, wrote the following concerning the representation made by Respondent in this sentence: This is blatantly untrue. If you quote people, make sure you quote them correctly. See me please. She then returned the letter (with her handwritten notations on it) to Respondent. Respondent thereafter, as directed, met with Ms. Jones, who cautioned him that he could not "just . . . go out and recruit parents to work in [his] classroom and not have them approved by the School Board." Mr. Roseburr, although he remained an assistant principal at Plantation, did not supervise Respondent during the 1998-99 school year. Respondent's new supervisor was another assistant principal at the school, Carol Mendelson. On October 7, 1998, Ms. Mendelson conducted a classroom observation of Respondent. Following the observation, she sent Respondent the following memorandum, dated October 12, 1998: OBSERVATIONS During my observation of your class, you were introducing personal narratives to your students. You explained the concept of the first draft and the idea that students would choose their own topic for this assignment. Students were walking around the classroom, talking, drawing, had heads down on the desk without consequences from you. A review of your planbook indicates that plans for the day do not coincide with the lesson being taught by you. SUGGESTIONS Please consider the following recommendations to better assist the students: Setting clear, precise, classroom management rules that are reviewed daily with students will help enforce the rules. Consequences must be fair and consistent. Students were walking around the classroom, talking, drawing, had heads down without consequences from you. It is imperative that you establish and implement specific behavioral and procedural expectations, rules, and consequences in order to stop inappropriate behavior before it becomes more serious. Develop plans which match the curriculum you are addressing on each given day. Please make sure that your grade/planbook is in compliance with School Board policy and includes grades, entry dates, transfer dates, absences, interim grades, ESOL strategies, Standards of Service, and all mandated, pertinent information. Please meet me on Monday, October 22 during your planning period with your grade/planbook up- to-date with the abovementioned information. At the end of the first quarter of the 1998-99 school year, in approximately the first week of November of 1998, Respondent was given a new teaching assignment at Plantation, as well as a new classroom (an uncarpeted portable, smaller than his old classroom). He was assigned to a team consisting of four teachers (including himself) responsible for teaching approximately 120 students divided into four separate groups (Groups A through D), one of which (Group D) contained the students who had been in the "self-contained" class of "drop out prevention" students that Respondent had taught during the first quarter of the school year. Although only one of the four groups had students who were in the school's "drop out prevention" program, many of the students in the other three groups were as difficult for the teachers on the team to deal with as were the "drop out prevention" students. Respondent was the team's math and advanced communication skills teacher. The leader of Respondent's team was Ronald Jackson, the team's social studies teacher. Like Respondent, Mr. Jackson joined the team in November of the school year. In addition to Respondent and Mr. Jackson, there was also a language arts teacher, as well as a science teacher, on the team. On November 19, 1998, shortly after he had undertaken his new assignment, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum describing what she had observed during the observation: This letter is being written to inform you that on this date, I came to your classroom on two different occasions and found the following: Students not on task (talking, 1/ no materials) Students out of their seats and/or being permitted to sit wherever they wished with no management from you and no consequences for non-compliance. 2/ Your plan book was not updated by November 13 as requested. You have been asked to rectify this situation by Friday, November 20. Your plan book reflected no attendance or grades for students. 3/ Your lesson plans are not written appropriately, do not reflect the Sunshine State Standards, and do not reflect acceptable practice for lesson plans as discussed with all teachers during the pre- planning days. Your back is turned to students during your lesson 4/ and you are not aware or monitoring what is happening in your classroom while you are instructing. There is very little instructional organization and no classroom participation from the students. There is no indication that you are doing the daily FCAT warm-ups required for all math students in the school. There is no FCAT folder required for each student to use on a daily basis. Ms. Jones again observed Respondent in the classroom on Tuesday, December 1, 1998, during first period. Respondent had been off from work the previous five days (Thursday, November 27, 1998, Thanksgiving Day, through Monday, November 30, 1998). Upon his arrival at school that morning, before entering his classroom, he was called into an unscheduled student services meeting. Because of the length of the meeting, he arrived at his classroom a "couple [of] minutes" after the first period bell had rung. When he opened the classroom door, he noticed that "the fire extinguisher had been sprayed all over the room." With the students' assistance, he cleaned up as best he could and then started his lesson. When Ms. Jones entered the room, Respondent was in the back of the room taking attendance. The students were "out of control." They had no books and there was no assignment on the blackboard. Following the observation, Ms. Jones sent Respondent the following memorandum, dated December 1, 1998, describing what she had observed during the observation: On this date I visited you classroom and observed the following: It was 9:00 a.m. and the students were totally out of control. There was no assignment on the board, students had no books. You were in the back of the room finishing your attendance, oblivious to what was going on around you. There were absolutely no reprimands from you for their behavior. In fact, it was I who had to quiet the class down. The class was so loud and unruly, that you did not even hear Ms. Milligan call you over the loudspeaker. I also had to inform you that someone was calling you over the public address system. Although your plan book appears to be updated, you were not following the plans as outlined. In fact, no FCAT warm up was on the board, no books were in use and absolutely nothing in terms of teaching and learning was occurring. This was one half hour after class had started. After I quieted the class down, you proceeded to give out paperwork to students apparently to review it. You handed out papers one by one to students who began to be unruly again. At 10:00 a.m. I visited your classroom again, because I wanted to speak with Mr. Roseburr who was outside your door. However, when I went inside the classroom, there was still no work on the board for students, although books were on the desks. Students were talking and looking around and not on task because there was no task to be on. When I questioned what the students were doing, you explained that you had papers to return and that you[] were going to review their work. Once again, you passed out papers one by one, taking away from instructional time and giving students opportunity to misbehave. 5/ It is apparent to me that there is a lack of classroom management in terms of student behavior, and a greater lack of lesson management since there are no clear expectations for students and no method for simple housekeeping chores as attendance and returning papers. You are oblivious to their behavior 6/ and provide no consequences. Most obvious, is the lack of meaningful work for students. There was none provided. Given those circumstances, students will find an easy opportunity to misbehave. Should these conditions, including delivering lessons as outlined in your plan book, not improve immediately, you will be placed in documentation for unsatisfactory performance. On December 7, 1998, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated December 16, 1998, in which he described and commented on what he had observed during the observation: On Monday, December 7, 1998 I observed you teaching your class from 9:15-9:45 A. M. Based upon my observation the following are suggestions/comments for your consideration. I found the classroom to be orderly; however, your students were talking loudly as you attempted to teach by talking louder. The class continued talking out loud with no consequence or redirection by you. While the entire class was being disruptive you gave one check to a student for talking, even though the entire class was talking. Never once did you get the class under control and, for some unknown reasons, you continued talking with no one listening. Please be advised that this is unacceptable. It does not make sense to try to shout louder than your class. You must first bring the class under control by confronting the misbehavior. This did not occur. Your attendance was neatly done, listing tardies and absences. Grades were virtually non-existent, and the few that were there did not have names to identify who they belong to. Grades must be clearly recorded next to the appropriate student's name. 7/ Lesson plans from 11/9/98-11/30/98 were incomplete. There were no warm up activities. Additionally, you identified the 504 student's strategies as they were to "do 1/2 of the assignment." The strategies need to be based on the student's needs as they related[] to the written 504 plan. 8/ ESOL strategies written were, "Students may sign out a book if requested." This is unacceptable. Please let me know if I can be of further assistance. On December 17, 1998, Respondent received a memorandum from Ms. Jones notifying him that his "performance [was] unsatisfactory and that [he was being] placed in the Documentation process of the IPAS System effective December 17, 1998." In the memorandum, Ms. Jones explained that she was "moving [Respondent] from Development to Documentation" because of her "concern" regarding his performance in the areas of "lesson presentation," "classroom management," and "behavior management." The memorandum further advised Respondent that "the 1997 Florida Legislature [had] amended Florida Statu[t]e 231.29 [to] state[] that the School District shall place a teacher on performance probation for 90 calendar days from the receipt of this notice of unsatisfactory performance." Respondent signed the memorandum and dated it (December 17, 1998), acknowledging his receipt of the document. "IPAS" is the acronym for the School Board's "Instructional Personnel Assessment System." Under "IPAS," "lesson presentation," "classroom management," and "behavior management" are three of the ten "performance areas" in which instructional personnel are evaluated. The other seven are "instructional planning," "lesson management," "student performance evaluation," "communication," "records management," "subject matter knowledge," and "professional competencies." 9/ Ratings of either "S" (satisfactory), "N" (needs improvement), or "U" (unsatisfactory) are given in each "performance area." With input from Respondent and Gary Itzkowitz, a Broward Teachers Union field staff representative, Ms. Jones, Mr. Fegers, and Dr. Cathy Kirk, the School Board's coordinator of teacher evaluation, developed Performance Development Plans for Respondent in the "performance areas" of "lesson presentation," "behavior management," and "classroom management." Each plan was dated January 7, 1999, and indicated that Mr. Fegers would be the "assessor" and that the "follow- up/review date" was March 5, 1999. The "lesson presentation" Performance Development Plan read as follows: Identified Deficiencies Fails to create interest through the use of materials and techniques appropriate to the varying abilities and backgrounds of students (6B-5.004). Fails to use different types of questions to obtain desired learner responses. Fails to ask questions which are clear and requires students to reflect before responding. Fails to circulate about the room as students engage in seatwork and assist students as needed. Strategies for Improvement, Corrections, and Assistance Ms. Greifinger [the chairperson of Plantation's math department] will meet and discuss various motivational teaching techniques such as (a) Use of visual aids, manipulatives, and critical thinking activities, etc. by January 14, 1999. Ms. Cranshaw will assist with scripting questions related to the content during lesson planning 2-3 weeks in a row by January 29, 1999. Mr. Jones will observe Ms. Greifinger focusing on questioning techniques and follow-up by discussing implementation in classroom during his planning time by January 22, 1999. Mr. Jones will read the FPMS Domain document (domain 3) on circulating and assisting and discuss with Mr. Fegers. Follow-up assistance will be provided by Mr. Fegers and/or Mrs. Jones via observation and follow-up conferencing. Expected Outcomes and Timeline Teacher Will: Create interest through use of material and techniques appropriate to the varying abilities and backgrounds of students (6B- 5.004) by April 13, 1999. Use different types of questions to obtain desired learner responses by April 13, 1999. Ask questions which are clear and require students to reflect before responding by April 13, 1999. Circulate about the room as students engage in seatwork and assist students as needed by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "behavior management" Performance Development Plan read as follows: Identified Deficiencies Fails to maintain consistency in the application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction (6B-5.007). -Fails to demonstrate an awareness of what all students are doing. Strategies for Improvement, Corrections, and Assistance Mr. Jones will observe Ms. Greifinger's class to witness her technique in behavior management. Discussion to follow by January 21, 1999. Mr. Jones will observe Mr. Lyons' class to witness his techniques in behavior management by January 28, 1999. Discussion with Mr. Fegers and Mr. Lyons to follow. Mr. Jones will observe Mr. Watkins' class to witness his techniques in behavior management by January 28, 1999. Mr. Jones will receive assistance from Ms. Mendelson, Mr. Fegers, Mr. Roseburr and selected teacher(s) to develop a behavior management plan including rules, rewards and including consequences by January 14, 1999. Mr. Jones will develop a phone log system which will indicate conversations, conferences with parents, specific student infractions, and disposition of all of the above with the assistance of Ms. Mendelson by January 21, 1999. Mr. Fegers will observe classroom to help identify inappropriate behaviors and follow-up with discussion to include appropriate ways to desist inappropriate behavior by January 28, 1999. Expected Outcomes and Timeline Maintain consistency in the application of policy and practice. Establish routines and procedures for the use of materials and the physical movement of students by April 13, 1999. Formulate appropriate standards for student behavior by April 13, 1999. Identify inappropriate behavior and employ appropriate techniques for correction (6B-5.007) by April 13, 1999. Demonstrate an awareness of what all students are doing by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "classroom management" Performance Development Plan read as follows: Identified Deficiencies Fails to create and maintain an organized and pleasant working environment in the classroom. Fails to encourage students to participate and contribute to class activities. Fails to establish an environment conducive to positive peer interaction. Fails to identify individual social, emotional and/or physical needs that might affect school success. Strategies for Improvement, Corrections, and Assistance Mr. Watkins will assist in the setting-up and organizing of the classroom to include aesthetically appealing academic and social environment by January 14, 1999. Ms. Greifinger will discuss different student activities that will foster participation and interaction 2-3 times by February 11, 1999. Should a 504 student be assigned to your team, Ms. Hogan will review 504 plans and discuss ways to modify curriculum and implement in classroom (Date to be determined). Expected Outcomes and Timeline Create and maintain an organized and pleasant working environment in the classroom by April 13, 1999. Encourage students to participate and contribute to class activities by April 13, 1999. Establish an environment conducive to positive peer interaction by April 13, 1999. Identify individual social, emotional and/or physical needs that might affect school success by April 13, 1999. Consequences for failure or refusal to remediate all areas identified as deficiencies: Will result in an unsatisfactory IPAS evaluation and termination of contract. Respondent received a copy of this document on January 7, 1999, but refused to sign it. The "[s]trategies" set forth in the Performance Development Plans were reasonably designed to enable Respondent to improve his performance in the areas of "lesson presentation," "classroom management," and "behavior management." These "[s]trategies" were implemented. Those at the school asked to assist Respondent provided him the requested assistance (with Respondent's cooperation). 10/ On January 27, 1999, Respondent was observed in the classroom by Mr. Fegers. On February 1, 1999, Mr. Fegers and Ms. Jones met with Respondent to discuss Mr. Feger's January 27, 1999, observation. In addition, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during the observation: This is a follow up to our conference on Monday, February 1, 1999. On Monday, February 1, 1999, we met to discuss my observation of your teaching that occurred on Thursday, January 27, 1999 from 1:38-2:13 P.M. Ms. Jeanie Jones, our Principal, was also present at the follow up conference. Based on my observation we discussed the following suggestions/comments for your consideration: All students were seated when I arrived. Your rules were not posted. 11/ You were working on F-CAT testing exercises. At 1:55 A.M. I observed eight students not doing any work. I stated my concerns that the students should not be given 30 minutes to do an assignment without you following up to see if they are on task. I recommend that additional assignments be given so that students do not sit and do nothing. The class is becoming increasingly noisy with no redirection from you. This is unacceptable. Finally, you stated to the class, "Alright people listen up!" Nothing followed that comment so the class continued talking. The talking continued because of down time, with students having nothing to do. You then started passing out papers one- by-one to students randomly which took a great deal of time. By this time most of the class was off task. This is unacceptable. Varied instructional activities as well as pacing of assignments would eliminate the majority of the misbehavior. This did not occur. We agreed that I would come back this week for another observation. Mr. Fegers next observed Respondent in the classroom on February 5, 1999. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated February 9, 1999, in which he described and commented on what he had observed during his February 5, 1999, observation: On Friday, February 5, 1999, I observed you teaching your class from 8:50-9:20 A.M. Based on my observation are the following suggestions/comments for your consideration. I found the classroom to be orderly with all students seated at t[]he beginning of my observation. You reviewed the rules and expectations with your class. Your rules were also posted. One student was seated with a washcloth on top of his head. He was not asked to remove it. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. I observed you passing out six writing assignments to students for talking. I observed you circulating and assisting students on division, simplifying fractions and multiplication. I observed you redirecting inappropriate behavior back to the assignment. Some students were requesting pencils at 9:15. Please make sure all students have something to write with at the beginning of the class. This should also be part of your discipline plan, that students come to class with paper and pencil prepared to work. Please let me know if I can be of further assistance. Respondent provided Mr. Fegers with the following written response to Mr. Feger's memorandum concerning the February 5, 1999, observation: #1. Thanks for the positive observation. #2. Yes this is true. I will follow your suggestion. #3. Thanks for the positive observation. #4. Thanks for the positive observation. #5. I have tried your suggestion, it doesn't work. They don't care and they don't want to work. That's why they don't come prepared. On February 17, 1999, Respondent was observed in the classroom by Ms. Jones. Following the observation, Ms. Jones sent Respondent the following memorandum, dated February 17, 1999, regarding her "observation [of] February 17, 1999." It read as follows: On this date I observed your C group in a math class. You were teaching least common denominators for fractions and had several examples on the board. Students came into the room noisily and it took about 7 minutes to get them quieted down and settled for work. You reminded them of the behavior rules. Some students were unprepared for work and had no notebook paper or pencils. Although there were stated consequences for students who misbehaved, there were no consequences for unprepared students. At the beginning of the lesson, you had a student hand out SAT review packets to each student and told them it was due on Friday and that the packet would be their homework for the next two days. You said that anybody could help them with the answers. I am questioning why you would give such a large body of work to these students and then ask them to complete it on their own. These students would benefit far better from you working out each problem with them, and/or allowing them to work in cooperative groups on a small number of problems at a time. This assignment is a concern to me, because I feel that it is a frustrating assignment to these students. Additionally, and most importantly, this is review for the SAT and they need your direct instruction and supervision. They will give up on this assignment because it is too much for them to "bite off" at one time. Students need to be taught to their instructional level, not their frustration level. Again, I feel that teacher directed instruction and cooperative learning activities would be more successful with these students, especially for the SAT review which is critical. I did not feel the answers to the examples should have already been up on the board; however, you did go over each problem thoroughly and had the students figure out how you arrived at the answer. You stopped disruptive behavior and gave two writing assignments out to disruptive students. You helped them learn how to use their calculators properly. You got students to raise their hands for answers and had students contributing to the lesson. You told the students you were going to give them examples of similar math problems to work out themselves, but the four problems you gave them were not exactly the same as the examples i.e., you did not provide a problem with mixed numbers. I see that you are making an effort to work with your students and that you are preparing lessons for them. Your classroom discipline appears to be improving, but still needs some work as students are still coming unprepared for classwork. Please continue to pay attention to the needs of your students, particularly when it comes to assignments that you request they do on their own. On March 3, 1999, Respondent was observed in the classroom by Mr. Fegers. Following the observation, Mr. Fegers sent Respondent the following memorandum, dated March 5, 1999, in which he described and commented on what he had observed during the observation: On Wednesday, March 3, 1999, I observed you teaching your class from 1:35-2:05 P.M. Based on my observation the following are suggestions/comments for your consideration: The students were extremely noisy. You were seated on a stool in the front corner of the room. 12/ You were not redirecting student misbehavior. No attempt to stop the misbehavior occurred. I did not observe you reviewing the rules and expectations that students were to follow. I strongly recommend that you follow the discipline plan as [you] indicated you would. You had three math problems on the overhead for students to do. One of which was the following, "5 is what % of 20?" The students were confused with not only this problem but also the other two. You went over the problem, but not step by step so that the students could follow along. They were confused. It would have been much more beneficial if the exercise or problems were broken down into simpler forms so that your class could understand. You did not take into consideration the appropriate levels or activities of classwork that meet the students' needs. Also the directions should have been clear, brief, and explicit for student understanding. This did not occur. 13/ Two students were reading a magazine, 14/ five were sleeping (literally), right under your nose, one was working with your attendance sheet while class was supposedly going on. This is unacceptable and you will need to redirect inappropriate behavior that does not follow the code of conduct. Additionally, I question why a student was working with a confidential document. 15/ I observed an atmosphere of animosity within the class, as evidenced by your voice inflection and you telling several students to shut up. You also asked me to speak to a student who you claimed had a beeper. I removed the student after the observation was finished and escorted him to the office. The student did not have a beeper. You accused the wrong student. You had claimed that the beeper went off in class, which it may have, but it was not the fault of the young man you requested I remove. Based on the observation done to date your performance in the areas identified in your Performance Development Plan are unsatisfactory. Ms. Jones, on March 5, 1999, filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." That same day, she and Mr. Fegers met with Respondent and Mr. Itzkowitz to discuss this "mid-point evaluation," which Ms. Jones showed to Respondent during the meeting. Respondent was advised that he ”needed to utilize appropriate instructional techniques to engage his students, encourage his students to participate and contribute to class activities, demonstrate an awareness of what his students are doing and stop all inappropriate behavior before it spreads or becomes more serious." In addition, he was reminded that "the 90th day [of his probationary period] was April 13 per Florida Statutes 231.29 and the documentation process of the IPAS system." Pursuant to a request made by Mr. Itzkowitz, on Respondent's behalf, at the "mid point evaluation" meeting, the following additional "strategy" was added, effective March 5, 1999, to the "Strategies for Improvement, Corrections, and Assistance" portion of the "lesson presentation" Performance Development Plan: Mr. Fegers, Ms. Greifinger and Mr. Jones will meet to plan a lesson, modeled by Ms. Greifinger and implemented by Jones & observed by Fegers by 3/17/99. On or about March 17, 1999, in accordance with the "model[ing]" requirement added to the "lesson presentation" Performance Development Plan, Ms. Greifinger, in Respondent's presence, taught a lesson to Respondent's students. Mr. Fegers was present for approximately five to ten minutes of the lesson. During the lesson the students behaved, by and large, as they did when Respondent was teaching them. There were students off task and walking around the classroom to whom Ms. Greifinger "had to speak." Respondent noticed that there was one student who had his head on the desk and was listening to a Sony Walkman. Ms. Greifinger said nothing to this student. Mr. Fegers was supposed to observe Respondent teach the lesson that Ms. Greifinger had "modeled." He had initially planned to conduct such an observation the week before spring break, but upon reconsideration (without consulting with Respondent or Mr. Itzkowitz) he determined that, in fairness to Respondent, such an observation should be conducted after spring break. The last school day before spring break was March 26, 1999. Respondent worked that day. It was the last day he reported to work. Sometime after the beginning of spring break, Respondent determined that, because of job-related stress and anxiety (resulting, in part, from his belief that he was being treated unfairly by school administrators), he was not able to perform his assigned duties at Plantation. Accordingly, he did not return to work on April 5, 1999, after the end of spring break, and he remained out of work thereafter. In accordance with School Board policy, each week that he was out (prior to the initiation of disciplinary action against him), he provided advance notice that he would be absent by telephoning "sub- central" and advising of his anticipated absence and the resultant need for the School Board to hire a substitute teacher to teach his classes. On occasion, Respondent also telephoned Ms. Jones' secretary (at the secretary's home) to let the secretary know that he would be absent. Respondent, however, did not initiate any direct contact with Ms. Jones. On or about April 12, 1999, Ms. Jones sent to Respondent, by certified mail, a letter, which read as follows: Please be informed that your 90th day according to Florida Statute 231.29 and as indicated on your Performance Development Plan is April 13. Due to your absenteeism, we were unable to meet for a final evaluation. We will meet in my office on Monday, April 19 at 12:15 P.M. Please call this office as soon as possible to inform us if you will be attending this meeting. Respondent neither telephoned Ms. Jones, nor attended a meeting with her on April 19, 1999. On that date (April 19, 1999), Ms. Jones filled out an "IPAS" evaluation form rating Respondent "unsatisfactory" in "overall performance" and in the "performance areas" of "lesson presentation," "classroom management," and "behavior management" and rating him "satisfactory" in the remaining seven "performance areas." In Ms. Jones' view, although at certain times during the probationary period Respondent had shown some improvement in his performance, "[t]here was nothing [in the way of improvement] on a consistent basis." At no time, however, did Ms. Jones believe that Respondent's performance was so deficient as to warrant his immediate removal from the classroom. Although Mr. Roseburr was not charged with the responsibility of supervising Respondent, he did have occasion to go to Respondent's classroom and see Respondent interact with his students. During these visits, it appeared to Mr. Roseburr that Respondent was discharging his teaching duties in the same satisfactory manner he had during the three previous school years. Respondent was "always in control and working with the students." Mr. Jackson, the leader of Respondent's team, also had a favorable view of Respondent's performance during the 1998-99 school year. According to Mr. Jackson, Respondent "always showed professionalism, spoke to the students in a positive light, . . . [and] would go out of his way to try to get them interested to do their work," employing "[v]ery creative" tactics to accomplish his objective. Another teacher at the school who had the opportunity to see Respondent perform in the classroom during the 1998-99 school year was Claire Peterson. Ms. Peterson provided special instruction to low performing students in the school's "pull out" program. She had occasion to visit Respondent's classroom about every other day to "pull out" students in the program. During these visits, she noted that Respondent's students "seemed to be on task" and "doing what he asked of them," for the most part, and that "education was taking place." 16/ She thought that Respondent was doing a "great job." On or about April 19, 1999, Ms. Jones began her efforts to make telephone contact with Respondent. Her efforts were unsuccessful. She left messages on Respondent's answering machine asking that he inform her when he intended to return to work. Respondent did not return Ms. Jones' telephone calls. By memorandum dated April 22, 1999, Ms. Jones recommended to Dr. Dorothy Or, the then-Interim Superintendent of Schools, that Respondent's employment be terminated. The memorandum read as follows: Pursuant to Florida Statute 231.29, I am writing to inform you that Eugene Jones, teacher, has completed his 90 calendar day performance probation and has failed to correct his performance deficiencies. I do not believe that Mr. Jones can correct said deficiencies and his employment should be immediately terminated. I have complied with all applicable provisions of Florida Statutes 231.29 and have appropriate documentation (see attached). Please inform me of your final decision in this matter. By letter dated April 30, 1999, Ms. Orr advised Respondent that she was recommending that the School Board formally suspend him, without pay, from his teaching position for "unsatisfactory job performance." On or about May 3, 1999, Mr. Itzkowitz, on behalf of Respondent, sent Ms. Jones the following letter: I have recently spoken with Eugene Jones. As you are aware, Mr. Jones has been ill and is currently under a doctor's care. He has informed me that you have tried to contact him by mail but that he is not in receipt of said correspondences. As a result, on behalf of Mr. Jones I request copies of any letters sent to him by your office in the past ninety days. Upon receipt, I shall forward them to Mr. Jones. Additionally, I request that a meeting be scheduled for the purpose of discussing Mr. Jones' annual assessment for the current school year. Both Mr. Jones and I would like to meet with you. I look forward to hearing from you on each of these matters. The meeting that Mr. Itzkowitz had requested in his May 3, 1999, letter was held in "the middle of May." At the meeting, Ms. Jones did not ask any questions regarding Respondent's absence from school. After seeing a physician about the stress and anxiety he was experiencing, Respondent applied for social security and long-term disability benefits. In applying for long-term disability benefits, Respondent submitted a completed Long Term Disability Claim Employee's Statement form, dated May 14, 1999, to the School Board's carrier, UNUM. The following are questions that were on the form concerning his "disability" and "the condition causing [his] disability" and the entries Respondent made in response to these questions: Why are you unable to work?-- c[h]ronic anxiety state/job stress. Does your current condition prevent you from caring for yourself?-- No. Before you stopped working, did your condition require you to change your job or the way you did your job?-- Yes. I could not perform my job d[ue] to my condition. Is your condition related to your occupation?-- Yes. Last day you worked before the disability-- 3-26-99 Did you work a full day?-- Yes. Date you were first unable to work?-- 4-5- 99. Have you returned to work?-- No. If you have not returned to work, do you expect to-- Yes, if I'm allowed, full time, (date) unknown. As part of the application process, Respondent also had his treating physician, Edwin Hamilton, M.D., complete and submit to UNUM a Long Term Disability Claim Physician's Statement. On the form, dated June 3, 1999, Dr. Hamilton stated, among other things, the following: Respondent's primary diagnosis was "chronic anxiety state"; Respondent's symptoms were "inability to sleep, stress, [and] nervousness"; Respondent's symptoms had first appeared "prior to 4/99"; Respondent had first been unable to work "prior to 4/99"; Respondent's first visit to his office had been April 1, 1999, and his last visit had been April 20, 1999; Respondent's condition was work related 17/ ; Respondent had been referred to a medical social worker and advised to see a psychiatrist 18/ ; Respondent should not and could not "work in the present school classroom environment"; Respondent's prognosis was "guarded at this point"; Respondent had not "achieved maximum medical improvement"; he "expect[ed] fundamental changes in [Respondent's] medical condition" in "more than 6 months"; Respondent "should remain out of the school classroom environment for the time being"; and Respondent "may be able to improve on medical/psychiatric consults." By letter to Ms. Orr, dated May 17, 1999, Mr. Itzkowitz "request[ed] a formal 120 hearing on [Respondent's] behalf." On May 18, 1999, the School Board took action to suspend Respondent, without pay, pending the outcome of the "formal 120 hearing" Respondent had requested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board enter a final order immediately reinstating Respondent and paying him his "back salary." DONE AND ENTERED this 13th day of April, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2001.
The Issue The issue for determination is whether Petitioner should enter into a new professional service contract with Respondent and whether Respondent's employment with Petitioner should be terminated, due to Respondent's failure to correct his teaching deficiencies.
Findings Of Fact John Kent (Respondent) was employed with the Palm Beach County School Board (Petitioner) as a social studies teacher since 1980 at Palm Beach Lakes High School (PBL High) and its predecessor school, Twin Lakes High School (TL High). During his employment with Petitioner, Respondent held a professional service contract. Respondent has been a teacher for over 30 years, having taught in both the Illinois and Florida school systems. In the latter part of 1996, concerns regarding Respondent's performance, as a teacher, were first raised in Petitioner's school system. Prior to that time, his teaching performance was evaluated as being satisfactory. From 1992 to 1996, PBL High's principal, Nat Collins, evaluated Respondent's teaching performance as satisfactory, with no record of incidents. Principal Collins is a certified Florida Performance Measurement System (FPMS) observer. FPMS is the system adopted by Florida's Department of Education for measuring the performance of teachers, using domains and concepts for each domain. Principal Collins had specifically praised Respondent's planning abilities and lesson delivery skills in three evaluations. Principal Collins' last evaluation of Respondent was in May 1996, in which he specifically praised Respondent for Respondent's lesson delivery skills. In August 1996, PBL High was assigned a new assistant principal, Thomas Carroll. Assistant Principal Carroll notified the teaching staff at PBL High in his first faculty meeting in August 1996 that he would be performing more critical observations of them. Assistant Principal Carroll is a certified FPMS observer. Principal Collins considered Assistant Principal Carroll's remark to be of poor judgment and chastised Assistant Principal Carroll for making such a comment. For the 1996-97 and 1997-98 school years, the assessment instrument used by Petitioner to evaluate its teachers was the Classroom Teacher Assessment System (CTAS). Using CTAS, teachers received a rating of either a one (a concern) or a two (acceptable) in 16 areas of teacher performance. A satisfactory evaluation of a teacher was one in which the teacher received a rating of 28 or above, out of a maximum of 32, or of 5 concerns or less. School-site improvement efforts may accompany a rating in which one concern is noted. During the 1996-97 and 1997-98 school years, the CTAS required a teacher at PBL High, whose performance was rated unsatisfactory at the end of the school year, to be placed in a District-Level Professional Development Plan (District-Level Plan) during the entire following year of improvement. If the teacher failed to sufficiently improve during the subsequent year, as determined by the principal, the teacher would be dismissed. During the 1996-97 school year, Respondent received a CTAS mid-year evaluation dated December 9, 1996. He received a score of 27 and was rated as unsatisfactory, with five concerns, also referred to as deficiencies. The concerns listed were Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; Demonstrates Ability to Plan Effectively; and Demonstrates Ability to Evaluate Instructional Needs. Subsequently, during the same school year, on April 16, 1997, a CTAS annual evaluation of Respondent was conducted. Respondent received a score of 28 and was rated as satisfactory on the annual evaluation. Four areas of concern were listed: Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively. During the 1996-97 school year, Respondent was not pleased with Assistant Principal Carroll's assessment of his teaching performances as inadequate. Respondent expressed his displeasure to Principal Collins regarding Assistant Principal Carroll's assessments. During the 1997-98 school year, on November 21, 1997, Assistant Principal Carroll observed Respondent. He determined that Respondent failed to teach any concepts during the class period. Subsequently, Principal Collins conducted a CTAS mid- year evaluation of Respondent on December 4, 1997. Assistant Principal Carroll provided input to Principal Collins regarding Respondent's mid-year evaluation. Respondent received a score of 30 and was rated satisfactory, with two concerns being listed. The concerns were Instructional Organization and Development; and Presentation of Subject Matter. Principal Collins was concerned that Respondent's last annual evaluation, which was performed on April 16, 1997, identified four concerns. As a result, on December 4, 1997, a School-Site Assistance Plan (School-Site Plan) was developed for Respondent. The School-Site Plan included professional standards seminars. Assistant Principal Carroll notified Respondent that the Peer Assistance and Review (PAR) Program was also available to provide assistance. The PAR Program is a master teacher assistance program. Both the Palm Beach County Classroom Teachers Association (Union) and Petitioner developed the PAR Program to assist teachers with the correction of deficiencies. As Respondent had raised concerns regarding Assistant Principal Carroll's observations of him, Principal Collins requested that an outside observer from Petitioner's district school staff observe Respondent. By memo dated February 27, 1998, Principal Collins noticed Respondent of the observation by the outside observer. The outside observation was to take place on March 10, 1998. As a result of the satisfactory mid-year evaluation, Respondent could not understand why he was being observed again and, this time, by an outside observer. In March 1998, Respondent expressed his concern in a memo to Principal Collins regarding the observation by the outside observer. Prior to the observation, Respondent's wife learned that Respondent was going to be evaluated by one of Petitioner's district staff persons. By letter dated March 4, 1998, to the General Counsel of the Florida Department of Education (DOE), Respondent's wife made allegations of ethical violations by Assistant Principal Carroll, regarding Respondent's observations, and requested an ethics inquiry by DOE. She copied the letter to Petitioner's chief personnel officer (Dr. Joanne Kaiser); Principal Collins; one of Petitioner's members; Petitioner's superintendent; and the Union's Executive Director. On March 9, 1998, Principal Collins completed a CTAS annual evaluation of Respondent. Respondent received a score of 29 and was rated satisfactory, with three concerns being noted. The concerns listed were Management of Student Conduct; Instructional Organization and Development; and Presentation of Subject Matter. Principal Collins did not recommend placement of Respondent in a District-Level Professional Development Plan. On March 10, 1998, Dr. Jeanne Burdsall, manager of Petitioner's Professional Standards, observed Respondent. She developed both the instructional and non-instructional evaluation and assistance plans. Dr. Burdsall's duties include monitoring the evaluation system. She is a certified FPMS observer. Dr. Burdsall had no knowledge of Respondent's prior evaluations. She noted six areas of deficiencies or concerns in Respondent's teaching and provided him with recommendations for improvement. The deficiencies were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Classroom Climate; and Planning. Dr. Burdsall determined that Respondent had conducted an ineffective lesson. On April 21, 1998, Respondent experienced a classroom management problem. Unidentified students in Respondent's classroom had covered his clothing with ketchup. Dr. Burdsall met with Respondent subsequent to the observation. She discussed the observation with Respondent and provided him with suggestions for improvement, employing a behavior management system and teaching a lesson. Dr. Burdsall urged Respondent to become involved in the PAR program. The Union filed a grievance challenging Respondent's observation of March 10, 1998. The grievance was denied at Step II of the process and was not pursued any further. Respondent was entitled to request a deficiency hearing and he did so. A deficiency hearing was held and Respondent's deficiencies were reviewed with him. On May 18, 1998, Patricia Kaupe, Petitioner's Instructional Support Team Member, Area 3 Administration, observed Respondent. Her duties include observing and assisting teachers with teaching performance deficiencies. Ms. Kaupe is a certified FPMS observer. She determined that Respondent had an ineffective lesson. Ms. Kaupe met with Respondent subsequent to the observation and provided him with feedback regarding more effective teaching practices. She concluded that Respondent was an incompetent teacher. At his discretion, on May 29, 1998, Principal Collins completed a second CTAS annual evaluation of Respondent. Assistant Principal Carroll provided input and expressed his concern that classroom management remained a concern and that Respondent continued to need improvement in that area. Principal Collins considered input by Assistant Principal Carroll, prior observations, including the observations of Dr. Burdsall, and the ketchup incident in April 1998. Respondent received a score of 26 and was rated unsatisfactory, with six deficiencies. The deficiencies were Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively. Principal Collins had further concerns regarding the safety of students and of Respondent and regarding the instruction level being provided by Respondent. This second CTAS annual evaluation, which rated Respondent unsatisfactory, was less than "6 weeks prior to the end of the postschool conference period." 4/ Respondent had requested a transfer and on July 17, 1998, he met with Petitioner's chief personnel officer, Dr. Joanne Kaiser. Those in attendance included Principal Collins, Assistant Principal Carroll, and Respondent's union representative. Respondent's request for transfer was denied in that Dr. Kaiser determined that Respondent's main concern was Assistant Principal Carroll, which concern was resolved; that Respondent's needs could be met at PBL High; and that Respondent was not on a District Plan as statutorily required. The granting or denial of the transfer was within the complete discretion of Dr. Kaiser. The evidence fails to demonstrate that Dr. Kaiser abused her discretion in denying the transfer. In addition to Respondent's transfer request, the discussion at the meeting on July 17, 1998, included Respondent's concern regarding Assistant Principal Carroll's being on Respondent's review team. Principal Collins recommended and it was agreed that Assistant Principal Marjorie Lesser would replace Assistant Principal Carroll. It was further agreed that Respondent would be placed on a 30-day School-Site Plan at the upcoming Fall term of school. Assistant Principal Lesser developed a 30-day School- Site Assistance Plan for Respondent. She met with Respondent on August 31, 1998, and reviewed the plan with him. Respondent's union representative did not attend the meeting and his presence was not a requirement. The focus of the School-Site Plan was to address Respondent's six teaching deficiencies listed on Respondent's CTAS annual evaluation of May 29, 1998, and to structure activities to assist him, which included reading materials; viewing professional development video tapes, regarding the deficient teaching domains; observing other teachers; being assisted by peer teachers; having other professionals observe his teaching; and meeting with Respondent and providing feedback on his teaching behaviors. Additionally, Assistant Principal Lesser arranged several seminars and workshops for Respondent. Respondent was also recommended for the PAR Program but he declined. On September 1, 1998, Assistant Principal Lesser observed Respondent. She is a certified FPMS observer. During the observation, Assistant Principal Lesser observed Respondent's efforts in complying with her suggestions; however, he was not successful. Assistant Principal Lesser determined that Respondent's teaching was ineffective and six deficiencies or concerns were identified. The deficiencies were as follows: Domain 3--inadequate directions provided to the students; Domain 3--too many students off-task; Domains 3 and 5--students sent mixed communication message; Domain 5--used a monotone voice; and Domain 2--a lack of consistency in management of student conduct. Periodically, during the implementation of the School- Site Plan, Assistant Principal Lesser met with Respondent, his union representative, and Principal Collins to review Respondent's progress and to discuss continuing concerns and the direction needed to be taken between meetings. The contents of each meeting were recorded and signed off by everyone. At no time did Respondent or his union representative raise a concern as to the timing or the appropriateness of the School-Site Plan. On September 16, 1998, Ms. Kaupe observed Respondent again. She determined that Respondent had failed to teach any concepts and concluded that his lesson was ineffective. Ms. Kaupe offered Respondent suggested strategies for improvement. On October 12, 1998, Assistant Principal Lesser again observed Respondent. She determined that Respondent's teaching was ineffective and that the same six deficiencies remained. Assistant Principal Lesser provided recommendations for improvement to Respondent. Safety concerns arose regarding Respondent's management of student conduct in his classroom because problems erupted into incidents involving students. To ensure safety in Respondent's classroom, Principal Collins implemented a physical change in Respondent's classroom. Principal Collins directed the removal of the light switch in Respondent's classroom, so that it could not be manually turned on and off, and the placement of a device which required a key to turn the light on and off. To further ensure safety in Respondent's classroom, not for behavior management or teaching, Principal Collins placed a teacher's aide in Respondent's classroom at the recommendation of Dr. Kaiser. In October 1998, Principal Collins' concern for safety heightened after a student was injured in Respondent's classroom. After the incident, Dr. Kaiser met with Principal Collins and others, regarding the student injury, and recommended the placement of a teacher's aide in Respondent's classroom for safety reasons, not for behavior management of the students, which was Respondent's responsibility, or for teaching of the students. On November 3, 1998, which was near the end of the 30- day School-Site Plan, Principal Collins observed Respondent. Principal Collins determined that a sufficient number of deficiencies were not corrected but remained. The deficiencies were as follows: Domain 1--Planning; Domain 2--off-track behavior; Domain 3--instructional organization; and Domain 5-- communication verbal and nonverbal. Principal Collins provided recommendations for improvement to Respondent. Respondent agreed, after encouragement, to participate in the PAR Program and to have a PAR teacher. Principal Collins referred Respondent to the PAR Program. At the end of the 30-day School-Site Plan, Respondent was given a CTAS mid-year evaluation by Principal Collins on November 10, 1998. Principal Collins considered the observation that he conducted on November 3, 1998, and Respondent's past observations on September 1, 1998, September 16, 1998, and October 12, 1998. 5/ Respondent received a score of 26 and was rated unsatisfactory, with six deficiencies. The deficiencies were Management of Student Conduct; Instructional Organization and Development; Presentation of Subject Matter; Communication: Verbal and Nonverbal; Establishes an Appropriate Classroom Climate; and Demonstrates Ability to Plan Effectively. Principal Collins recommended the placement of Respondent on a 90-day District Level Professional Development Plan (District Plan). The purpose of the 90-day District Plan was to assist in the remediation of the deficiencies. On November 16, 1988, Dr. Jeanne Burdsall met with Respondent and his union representative to review the 90-day District Plan. The meeting was also attended by Principal Collins and Assistant Principal Lesser. Neither Respondent nor his union representative raised an objection to the applicability of the 90-day District Plan to Respondent. At that meeting, among other things, Respondent's union representative requested a transfer of Respondent and a deficiency hearing. Petitioner's Superintendent noticed Respondent that he was being placed on a 90-day District Plan. Respondent's 90-day District Plan was the first teacher assistance District Plan implemented by Petitioner under the change in Florida Law which Petitioner interpreted as now requiring 90 days of assistance. As interpreted by Petitioner, the 90-day District Plan was effective beginning the 1997-98 school year. The 90-day District Plan consisted of an additional 30-day School-Site Plan followed by the now statutorily required 90 days of assistance. Under the new and revised 90-day District Plan, a new evaluation instrument was used, which required only three teaching deficiencies versus the five teaching deficiencies that were required under the former District Plan. For Respondent's 90-day District Plan, a decision was made to continue evaluating Respondent using the prior instrument requiring five deficiencies. The prior District Plan was not a part of the Union contract. However, the new 90-day District Plan, requiring a 30 plus 90-day assistance plan, was adopted by the Union and incorporated by reference in the Collective Bargaining Contract in Spring 1999. The Union and Petitioner worked for several years developing the new 30 plus 90-day assistance plan. Respondent's 90-day District Plan consisted of workshops, professional observations and feedback from the observers, peer teaching observations and school sites visits, and special assistance with planning. Periodic assistance and progress meetings were also held, which included the attendance of Principal Collins, Respondent, Respondent's union representative, and Dr. Burdsall or one of her staff members. The content of those meetings were recorded and signed-off on. On December 4, 1998, Dr. Lisa Troute, Petitioner's instructional specialist, Professional Standards, observed Respondent. Dr. Troute is a PAR teacher and is a certified FPMS observer. She determined, among other things, that Respondent had failed to develop any concepts. Dr. Troute concluded that Respondent's lesson was ineffective. She provided Respondent with recommendations regarding the six deficiencies. Dr. Troute returned to Respondent's classroom on December 15, 1998, and did not notice that any of her recommendations had been followed by Respondent. On December 10, 1998, Dr. Burdsall observed Respondent. As to the six deficiencies, she provided Respondent with the same teaching strategies for improvement that she had provided at her observation of March 10, 1998. Dr. Burdsall determined that Respondent failed to teach anything relative to the lesson and that his student management remained a problem. She concluded that Respondent's teaching was ineffective and that he was an incompetent teacher. A meeting regarding Respondent's 90-day District Plan was held on December 10, 1998. Persons in attendance included Respondent and his union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall. In January 1999, Dr. Kaiser held a meeting with Respondent and his union representative to address Respondent's request for a transfer. Dr. Kaiser held the meeting in January 1999, because she wanted a 90-day District Plan in place before considering the request. Granting the transfer was in Dr. Kaiser's sole discretion. She considered Respondent's, as well as the district's, concerns in making her decision. Dr. Kaiser denied Respondent's request. She determined that PBL High had taken sufficient precautions to assure the safety of Respondent and his students and that, even though vacancies existed at other schools in social studies, Respondent's remaining at PBL High would serve the best interest of everyone concerned. By letter dated January 15, 1999, Respondent was noticed of the denial. Respondent was placed on a 30 plus 90-day School-Site and District Plan. The statutory provision in effect at the time, as interpreted by Petitioner, only required 90 days of assistance. An adjustment in the 90-day timeline was made due to a hurricane make-up day in February. The timeline was changed to March 11, 1999. On January 14, 1999, Steve Byrne, Petitioner's program planner for social studies, multi-cultural students, and students who speak languages other than English (ESOL), observed Respondent. He is a certified FPMS observer. Respondent had requested that a content teacher observe him to assist him with content and teaching strategies; and Mr. Byrne's observation was for the purpose of content and teaching strategies. Mr. Byrne determined that Respondent had failed to teach any concepts and concluded that Respondent's lesson was ineffective. He met with Respondent and provided Respondent with feedback and strategies for improvement, including suggesting the use of cooperative learning as a more effective strategy. A deficiency hearing was held. A determination was made that sufficient evidence was present to warrant Respondent being placed on a 90-day District Plan to correct the deficiencies. On January 20, 1999, Dr. Mary Gray, assistant professor at Florida Atlantic University, observed Respondent. Since around 1982, she has trained trainers in the FPMS. Dr. Gray is a certified FPMS observer. For several years for PBL High, she observed teachers on District Plans and diagnosed teaching problems. When Dr. Gray observed Respondent, she observed, among other things, serious management problems and nothing meaningful being taught. Dr. Gray provided Respondent with improvement strategies. She concluded that Respondent's lesson was ineffective and that Respondent was incompetent as a teacher. Dr. Gray reviewed Respondent's School-Site Plan, other observations, and the 90-day District Plan. She determined that a pattern existed which demonstrated a lack of teaching concepts, inability to manage student conduct, and off-task behavior. Dr. Gray concluded that Respondent was an incompetent teacher. On January 28, 1999, Ms. Kaupe observed Respondent again. She completed an anecdotal observation, as there was no interaction between Respondent and his students. Ms. Kaupe determined, among other things, that Respondent had failed to teach any concepts and that students were off-task. She concluded that Respondent's teaching was ineffective. Ms. Kaupe provided Respondent with feedback and information regarding more effective teaching strategies. On February 10, 1999, a meeting regarding Respondent's 90-day District Plan was held. Persons attending the meeting included Respondent and his Union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall. On February 24, 1999, Principal Collins observed Respondent. The six deficiencies were addressed, and recommendations were made; the six deficiencies remained. Student misconduct remained a problem. On March 11, 1999, a meeting regarding Respondent's 90-day District Plan was held. Persons attending the meeting included Respondent and his union representative, Principal Collins, Assistant Principal Lesser, and Dr. Burdsall. Principal Collins conducted a CTAS annual evaluation of Respondent on March 12, 1999, at the conclusion of the 90-day District Plan. In preparing the evaluation, Principal Collins considered the following observations: December 4, 1998, observation by Dr. Troute; December 10, 1998, observation by Dr. Burdsall; January 14, 1999, observation by Mr. Byrne; January 20, 1999, observation by Dr. Gray; January 28, 1999, observation by Ms. Kaupe; and February 24, 1999, observation by Principal Collins, himself. 6/ Principal Collins determined that Respondent had not corrected the six deficiencies. These deficiencies were the same deficiencies that were present at the conclusion of the 30-day School-Site Plan. The deficiencies were in the areas of Management of Student Conduct; Instructional Organization and Development; Establishes an Appropriate Classroom Climate; Communication: Verbal and Nonverbal; Presentation of Subject Matter; and Demonstrates an Ability to Plan Effectively. Principal Collins determined further that Respondent was an ineffective teacher and that Respondent's teaching did not meet minimum standards to obtain a satisfactory evaluation. Respondent received a score of 26 and was rated unsatisfactory. Principal Collins recommended to the Superintendent the termination of Respondent's employment with Petitioner. By letter dated March 23, 1999, Respondent was noticed by the Superintendent that she was going to recommend his suspension without pay, effective April 8, 1999, and termination, effective 15 days after Petitioner's scheduled meeting on April 7, 1999. Petitioner's professional development plan had several components, including a School-Site Plan, the PAR Program, and the 90-day District Plan. Respondent was provided all of the aforementioned three components. The evidence demonstrates that Respondent cooperated with Petitioner and attempted to comply with the recommendations and assistance provided by Petitioner even though his attempts were deemed unsuccessful by Petitioner to correct the deficiencies. Respondent is a diabetic and some of the assistance conflicted with his medically required living- routine. The evidence fails to demonstrate that Petitioner provided Respondent sufficient assistance to correct one of the deficiencies or concerns. Observers noted that one deficiency was that Respondent spoke in a monotone and lethargic manner. Respondent's speech is as described but such speech, as observed by the undersigned and supported by the evidence, is considered by the undersigned to be a part of Respondent's make-up, his nature and has been so apparently throughout his teaching career. The responsibility was upon Petitioner to assist Respondent in correcting his deficiencies. The evidence demonstrates that the assistance provided to correct this deficiency did little, if anything, to remedy Respondent's speech pattern. Petitioner did not ascertain as to whether Respondent's speech pattern was capable of being changed through avenues other than that provided by Petitioner, such as speech therapy, since peer observation was obviously not a remedy. Speech therapy was not even suggested by Petitioner as a remedy. Petitioner failed to provide Respondent sufficient assistance to correct his speaking in a monotone and lethargic manner. The evidence is insufficient to support a finding that PBL High has a significant discipline problem. The evidence demonstrates that Respondent has meticulously prepared lesson plans and that his lesson plans are satisfactory. The evidence also demonstrates that he becomes frustrated when he has to deviate from his lesson plans. The evidence demonstrates that Respondent is knowledgeable in the subject area of social studies. Respondent had requested two significant forms of assistance, which were denied. The first assistance Respondent requested was to have his PAR teacher model more effective teaching behaviors with his students using his course curriculum. According to Dr. Troute, Petitioner can make modeling services available upon request from principals at "D" and "F" rated schools, such as PBL High, to assist teachers experiencing performance problems at such schools. Principal Collins was unaware of the availability of modeling services and, as a result, Respondent's request was denied. The evidence fails to demonstrate that the denial was a detriment to Respondent's performance in correcting his deficiencies. The second assistance Respondent requested repeatedly was a voluntary transfer. The granting of Respondent's transfer requests was discretionary with Dr. Kaiser. The evidence fails to demonstrate that Dr. Kaiser abused her discretion. The evidence fails to demonstrate that Principal Collins, Assistant Principal Carroll, Assistant Principal Lesser, any of Petitioner's administrative or management staff who observed Respondent, or any of the observers retaliated against Respondent. Furthermore, the evidence fails to demonstrate that any of the aforementioned persons retaliated against Respondent because of the letter written by Respondent's wife, dated March 4, 1998.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order and therein: Refusing to uphold the suspension without pay and recommendation for termination. Reinstating John Kent with full backpay and lost benefits. DONE AND ENTERED this 2nd day of June, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 2nd day of June, 2000.
The Issue May Petitioner be recognized by Respondent School District as a professional teacher association, pursuant to Section 231.6075, Florida Statutes.
Findings Of Fact Despite any typographical or other errors in the Petition, the parties are agreed that this cause is brought solely pursuant to Section 231.6075, Florida Statutes. Section 231.6075, Florida Statutes, effective June 21, 1999, reads as follows: 231.6075 Rulemaking authority; professional teacher associations. The State Board of Education shall adopt such rules as necessary to ensure that not-for-profit, professional teacher associations which offer membership to all teachers, noninstructional personnel, and administrators, and which offer teacher training and staff development at no fee to the district shall be given equal access to voluntary teacher meetings, be provided access to teacher mailboxes for distribution of professional literature, and be authorized to collect voluntary membership fees through payroll deduction. On July 7, 1999, Betty Coxe, Division Director, Human Resources Development, Florida Department of Education (DOE) wrote to Florida's District School Superintendents, advising them of the enactment of the statute and that DOE had identified "one statewide organization" which met the criteria to be a professional teacher association under this statute. That association was the Professional Educators Network of Florida, Inc. (PEN). Petitioner TEA was incorporated as a not-for-profit Florida corporation on September 22, 1999, by Jack Daniels as Chairman, Helen Heard as secretary-treasurer, and Daryl Grier as vice-chairman. The president, vice-president, and secretary- treasurer are elected by the Board of Directors. Currently, Chairman Daniels is also president. On October 25, 1999, Dean Andrews, Deputy General Counsel for DOE, issued a legal opinion on the following question: Must the State Board of Education adopt rules prior to school district implementation of Section 231.6075, Florida Statutes, relating to professional teacher associations? Mr. Andrews answered the question in the negative, concluding that "Section 231.6075, Florida Statutes, is self-executing." On December 20, 1999, David Ashburn, Director, Division of Human Resources Development, DOE, sent a letter to Florida's District School Superintendents "to provide further clarification for district level implementation" of Section 231.6075, Florida Statutes. That letter read, in pertinent part: It has come to the attention of the Department that there may be several associations that may meet the criteria for recognition in a district, and thus shall be afforded access to mailboxes, meetings, and payroll deduction as provided in the law. The professional association must provide documentation of compliance with the law and provide training in the district to establish recognition on an individual district by district basis. Therefore, a statewide listing or identification of the associations will not be possible. Implementation and compliance are to be at the local level. (Emphasis supplied) Sometime in January 2000, but before January 10, 2000, Mr. Daniels orally requested that Respondent Duval County School District recognize TEA as a professional teachers association, pursuant to Section 231.6075, Florida Statutes. His request was directed to Vicki Reynolds, Executive Director, Office of Policy and Compliance for the Duval County School District, who had been delegated the responsibility for handling this matter by Respondent's Superintendent of Schools. Ms. Reynolds has an extensive background with the Respondent School District. She was an elementary classroom teacher for eight years; served nine years as legal affairs liaison for the District; served as School District general counsel for two and a-half years; and has been in her present position for approximately one year. The record is silent as to whether she continues to be a certified or licensed professional teacher. In two trips to see Ms. Reynolds, Mr. Daniels delivered to her a copy of TEA's Articles of Incorporation and a copy of an October 13, 1999, letter from Buddy Worwetz, President of Worwetz Education Systems. According to Mr. Worwetz's testimony, Worwetz Education Systems is a "training, consulting, technology firm" which "mostly does adult basic training" and some "teacher training." Mr. Worwetz would expect to be paid for such services. The October 13, 1999, Worwetz letter indicated that Worwetz Education Systems had presented many workshops in "educator training" and "staff development," such as "drop out prevention and classroom management," which had been personally taught by Mr. Worwetz in Respondent's School District, and that the company had the capacity to provide workshops in "curriculum and instruction, various subject matter, technology, exceptional student education, communications, diversity, community relations, and the school improvement process," plus two, six- hour courses, taught by Dr. Kyker and Carla Jones, entitled "Introduction to Cooperative Discipline" and "Student-Centered Leadership." TEA contended that these courses constituted appropriate continuing education courses for professional teachers. In January 2000, when she reviewed TEA's Articles of Incorporation and the October 13, 1999, Worwetz letter, Ms. Reynolds accepted them at face value, but Ms. Reynolds could not identify any of the members of TEA's Board of Directors as teachers or educators. She also was not familiar with any of the names or the specifically-titled courses in Mr. Worwetz's October 13, 1999, letter. She was familiar with Mr. Daniels' background, which was primarily in insurance and union organization and litigation. On or about January 10, 2000, she orally denied TEA's recognition request. On January 11, 2000, Mr. Daniels wrote a letter to Respondent's Superintendent of Schools, requesting recognition of TEA. The Superintendent did not write him back, but that day, or shortly thereafter, Ms. Reynolds orally conveyed the Superintendent's denial to Mr. Daniels. On January 26, 2000, TEA filed a Petition for Formal Hearing, which was not acted upon by Respondent. TEA next filed a Petition for Writ of Mandamus in the First District Court of Appeal, requesting that court to compel Respondent School District "to either grant or deny" TEA's request for formal hearing. Respondent opposed the Petition for Writ of Mandamus. On July 12, 2000, the First District Court of Appeal issued an Order, providing in pertinent part, as follows: We issued an order to show cause and find that respondent's arguments in opposition to the petition might ultimately prove to be valid reasons to deny the request for formal hearing or, if a hearing is held, to support the district's decision to decline to authorize TEA. They are not, however valid reasons to fail to act on the petition for formal hearing in a timely fashion. . . . Accordingly, we grant the petition and issue our writ of mandamus, directing the district to act on TEA's petition for formal hearing . . . . Respondent did not deny TEA's request for formal hearing. Rather, Respondent granted TEA's request for formal hearing, in effect declining to recognize TEA, and referred the case to DOAH, on or about August 17, 2000, for a hearing on the merits of recognition, pursuant to Section 231.6075, Florida Statutes. In either September or October 2000, Respondent, through Ms. Reynolds, accepted submittals from PEN (see Finding of Fact No. 3) at face value. She reviewed a four-page document provided by PEN, which listed all PEN's teacher education and staff development courses with course descriptions and objectives and named some of the instructors. Ms. Reynolds also reviewed a brochure naming PEN's Board of Directors and stating PEN's mission and vision, and a brochure listing the services PEN offers its members in exchange for their dues, which services include legal representation, insurance, and a statewide networking procedure.1 Ms. Reynolds was able to identify teachers and "educators" certificated and/or licensed by DOE on PEN's Board of Directors and certificated and/or licensed teachers named for its courses. Some of these persons she knew personally and others she knew by reputation from her nearly 20 years as a teacher and/or administrator in Respondent School District. Ms. Reynolds identified a former superintendent of Gadsden County Schools and a former president of Florida State University as being these "educators." She identified the courses offered by PEN as having some value to continuing teacher education. She also accepted that PEN was a statewide professional teacher association which presumably had DOE's imprimitur. (See Finding of Fact No. 3.) Thereafter, Respondent recognized PEN, pursuant to Section 231.6075, Florida Statutes, and Respondent now deducts PEN members' dues from Respondent's payroll. Ms. Reynolds also testified that representatives of a union, Duval Teachers United (DTU), had asserted that Section 231.6075, Florida Statutes, was unconstitutional and that they had urged that Respondent therefore not recognize any professional teacher associations, including PEN and TEA. It is unclear whether DTU has any affiliation with the AFL-CIO. At hearing, Jack Daniels testified and presented TEA's Articles of Incorporation, demonstrating that TEA is a not-for- profit corporation which offers membership to all teachers, non- instructional personnel, and administrators of all Florida School Districts. TEA apparently operates out of Mr. Daniels' home. TEA is not affiliated with the AFL-CIO. There are no professional (certificated or licensed) teachers on TEA's Board of Directors. It is not necessary to determine if an "educator" also may be a person trained in school administration, teacher qualification, and similar educational support services without also being a licensed or certificated teacher, because TEA's Board does not contain any of these professionals either. TEA did not demonstrate that any of its Board members had any education, training, or experience which would equip him or her to offer appropriate teacher training or staff development. Mr. Daniels has a background in insurance and union organization and litigation. Ms. Heard's qualifications were never clearly revealed. It was disputed whether or not Daryl Grier remained on TEA's Board of Directors as of the date of formal hearing, but in any case, TEA never affirmatively demonstrated that Mr. Grier has any background or qualifications as a teacher or "educator." In fact, his qualifications, if any, were never revealed. Buddy Worwetz testified concerning the courses described in his October 13, 1999, letter to Mr. Daniels (see Finding of Fact Nos. 10 and 11), but he never clearly explained the content of any course offered by his company, including those he has taught in the District. The other instructors available and named in the letter, Dr. Kyker and Carla Jones, were trained and "certified" by contributing authors, Pete DeSisto and Ken Blanchard, of a book with a title similar to one of the course titles, "Introduction to Cooperative Discipline." One of the proposed instructors, Dr. Kyker, reputedly is a "professor," but a professor of what discipline and where she serves as a "professor" was not explained. No mention was made of whether any of these people are certificated or licensed by DOE. Other qualifications, if any, of these proposed instructors were not explained. It was not demonstrated that Mr. Worwetz is a licensed or certificated teacher. Also, the cost and objectives of Worwetz's courses were not explained. However, evidence of Worwetz instructors and courses is essentially moot, since any planned collaboration between TEA and Worwetz Education Systems had ended before formal hearing. Effective May 26, 2000, Mr. Worwetz wrote Mr. Daniels that Worwetz Education Systems would no longer be available to contract with TEA for educational services. Mr. Worwetz's reasons for rescinding his October 13, 1999, offer to deal with TEA were his "gut feeling" that his organization "was being used to bolster TEA's eligibility and capability"; because Mr. Daniels had not contacted him in more than 30 days; and because he believed contracting with TEA would hurt his business with an AFL-CIO rival of TEA. It is clear from Mr. Worwetz's candor and demeanor while testifying that AFL-CIO members had influenced his decision to distance himself from TEA, but there is no evidence of any efforts of the Respondent School District in that regard. TEA currently has no employees, agents, or contractors who can offer continuing teacher education. TEA presented no evidence it currently has any members besides its three Directors, let alone any members who are professional teachers in Respondent's school district who might value receiving TEA materials in their mailboxes and deductions for TEA dues from their paychecks. TEA presented no evidence concerning the content or credit-hour value of educational courses it currently intends to offer. Apparently, TEA expects Respondent to list courses Respondent considers acceptable for teachers' continuing education and staff development and then Mr. Daniels, on behalf of TEA, will try to contract with some entity to produce these courses or will try to contract with an entity already offering such courses. Such a scenario hardly seems feasible, and TEA offered no evidence that any qualified entity exists which is willing to contract with TEA for this service. TEA presented no evidence that it has operating funds with which to provide the educational programs contemplated by the statute. Respondent School District, as represented by Ms. Reynolds, is aware of a prior labor dispute decided by the Florida Public Employees Relations Commission (PERC) which partially went against Respondent and in favor of a non-AFL-CIO union which Mr. Daniels represented. There also has been litigation before PERC which required Mr. Daniels' union "client" to pay money to Respondent, and the money has not been paid. Despite Ms. Reynolds' denial, her candor and demeanor when testifying suggests that she and her advisers have a concern that Mr. Daniels has a secret union agenda connected with TEA and that this concern was a component of Respondent's denial of recognition to TEA, pursuant to Section 231.6075, Florida Statutes. Respondent School District, as represented by Ms. Reynolds, views access to teachers' mailboxes and use of payroll deductions as having fiduciary overtones. She and her advisers have reservations about Mr. Daniels' fitness to administer such activities and funds on behalf of TEA. It is feared that programming into Respondent's system a payroll deduction for TEA may cause some of Respondent's employees to believe that Respondent has checked TEA's reliability in fiscal matters and is endorsing TEA in that regard. Respondent does do such checks on the tax-sheltered annuity firms for which Respondent makes payroll deductions. Supporting its concerns about union agitation and fiscal responsibility, Respondent had admitted in evidence PERC Show Cause Order Docket No. RC-99-014; Order No. 99E-070, dated March 18, 2000, found at 6 FPER paragraph 31099. That Order, in pertinent part, found as fact as follows: In 1990 Florida American Union (FAU) . . . through Daniels, filed an unfair labor practice charge which it knew was frivolous or groundless and ordered FAU to pay the [Duval County] School District its reasonable attorney's fees and costs. The Commission approved this recommendation. See Florida American Union v. Duval County School District, 16 FPER ¶21150 (1990). In 1993, . . . Daniels [as lay representative of a union] filed a motion asserting racial allegations against the Commission. That motion contained inaccurate and deceptively stated information and the Commission denied the motion as devoid of merit in form and substance. See Brotherhood of Black Custodial and Food Service Workers v. Duval County School District v. Florida Public Employees Council 79 AFSCME 19 FPER ¶24067 (1993). In 1994 . . . the hearing officer disqualified Daniels as a lay-representative for creating and using false evidence, presenting false testimony, and engaging in ex parte communications with the Commission. Recognizing the gravity of Daniels' misconduct in the ACE case, the Commission stated that in future cases Daniels would be subject to a show cause order when he asks to serve as a lay-representative. See Association of City Employees v. City of Jacksonville, 22 FPER ¶27052 (1996) appeal dismissed, No. 96-168 (Fla. 1st DCA Oct. 30, 1996). In 1996, . . . [w]hen Daniels sought to act as JETs lay-representative, the hearing officer issued an order to show cause why he should not be disqualified. Jacksonville Employees Together (JET) v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME Case No. RC-96- 054 (Fla. PERC HOO Dec. 13, 1996). The hearing officer noted Daniels' flagrant misconduct in the ACE case and that Daniels' response only attacked Commissions ACE decision; thus, according to the hearing officer, Daniels failed to provide sufficient reasons why he should not be disqualified to serve as JET's lay- representative. Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, Case No. RC-96-054 (FLA. PERC H00 Dec. 19, 1996); see also Jacksonville Employees Together v. Jacksonville Housing Authority v. Florida Public Employees Council 79, AFSCME, 23 FPER ¶28109 (1997). On appeal, the court affirmed the hearing officer. Jacksonville Employees Together v. Jacksonville Housing Authority, Case No. 97- 1784 (Fla. 1st DCA Aug. 19, 1998). In 1997, . . . the hearing officer disqualified Daniels as JET's lay- representative because he engaged in conduct that was prejudicial to the administration of justice. Fla. Admin. Code Rule 28- 106.107(3)(b) . . . See Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL-CIO, Case No. RC-97-034 (Fla. PERC H00 July 24, 1998, appeal withdrawn, Case No. 98-0343 (Fla. 1st DCA Mar. 4, 1999); see also Jacksonville Employees Together v. City of Jacksonville v. Florida Public Employees Council 79, AFSCME, AFL- CIO, 25 FPER ¶30047 (1999). On August 31, 1998, . . . [t]he circuit court . . . adjudged Daniels in contempt for failing to honor a lawfully issued subpoena. . . . In re: The Petition of Florida Public Employees Council 79, AFSCME, Case No. 98- 4935-CA (Fla. 4th Cir. Ct. Nov. 16, 1998). [Bracketed material added for grammar and clarity.] The PERC Order gave Mr. Daniels 10 days in which to respond. TEA presented no evidence that the foregoing PERC Order to Show Cause had been responded to, reconsidered, vacated, set aside, or even appealed. Mr. Daniels testified, without refutation but also without any subsequent PERC Order to support his testimony, that, due to a change of PERC Commissioners, he has been re-admitted to practice before PERC. This evidence, even if believed, does not alter the facts as previously found by the PERC Order in evidence.2
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Duval County School District enter a final order denying Teachers Education Association's request for recognition pursuant to Section 231.6075, Florida Statutes, as of the date of the final order.5 DONE AND ENTERED this 5th day of January, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of January, 2001.
The Issue The substantive issue in this proceeding is whether the Respondents Florida teaching certificate should be suspended or revoked based upon the allegations of Petitioner's complaint dated June 4, 1987. Respondent has raised various procedural issues in his written documents and in a telephone motion hearing held on November 10, 1987. Those issues include whether he has already surrendered his teaching certificate, whether the investigation was proper and whether the formal hearing was properly scheduled.
Findings Of Fact Based upon a consideration of all evidence properly made part of the record in this proceeding, the following findings are made: David Cunningham is now, and was at all times relevant, certified as an elementary school teacher under State of Florida Certificate No. 468382. The certified copy received in evidence as Petitioner's Exhibit 1 reveals a date of issue of April 14, 1986 and an expiration date of June 30, 1990. No competent evidence was presented to support Respondent's allegation that the certificate was invalid or otherwise lawfully relinquished or revoked. David Cunningham was employed as an elementary teacher at Caley Elementary School in Orlando, Florida during school year 1983-84, until March 1984, when he was placed on leave without pay for the remainder of the school year. Dynell Harrell was a fifth grade student in Cunningham's reading class during the first semester of 1983-84 at Caley. Dynell was twelve years old at the time. During the second semester of 1983-84, Dynell transferred to another school, but began having contacts with Cunningham outside of the school setting. The two went to amusement parks and to restaurants. On only one occasion they were accompanied by Dynell's siblings. Dynell began spending weekends at Cunningham's house. Cunningham gave him presents of clothes, shoes, and money - - $20 or $30 at a time, for an eventual total of at least $500. On the occasion of the second weekend visit, Cunningham got in bed with Dynell. Later, during the night, he began touching and rubbing the youth and took his clothes off. In response to Dynell's question of what was going on, Cunningham responded with a reminder of their friendship and all the things he had done to benefit him. They engaged in oral sex at that time. After that, the sexual contact was routine on the weekend visits, once or twice a month. Cunningham engaged Dynell in oral and anal sex and gave him vodka and cigarettes. Dynell was afraid to tell anyone as he thought he would lose his friend. He also felt he owed Cunningham a favor. During this time, Dynell's mother noticed a withdrawal of her son from his close relationship with her. She was somewhat suspicious of Cunningham's interest but Dynell denied that Cunningham had ever asked him to do anything that he didn't want to do. She believed him because she felt he would be candid with her. At the beginning of the seventh grade, Dynell went to Illinois to live with his grandmother in Illinois. Cunningham called him on the phone, but his grandmother was suspicious and didn't let Dynell talk. On one occasion, Cunningham stopped at the grandmother's house on his way to North Dakota. The grandmother let Cunningham take Dynell out to eat, but only in the company of Dynell's cousin. Dynell also wanted his cousin to come along as he figured nothing could happen if they were not alone. Cunningham told Dynell he wanted to continue seeing him, but Dynell did not want that and responded that he would be in Chicago and would not be able to see Cunningham. Dynell has had no further contact with Cunningham, even after the youth's return to Florida in eighth grade. Dynell has received mental health counseling to help him deal with the relationship with Cunningham. Dynell has been reluctant to associate along with male students and adult males, and refused to participate in his church's Big Brother program unless one of his friends is able to accompany him. John Hawco, administrator of Employee Relations for the Orange County School Board, would not recommend that Cunningham ever be employed in any position in which he would be exposed to children. His effectiveness as a teacher has been seriously impaired by his conduct toward his former student. He exploited his professional relationship with that student in return for personal gain and advantage. By certified letters and through contacts with Cunningham's prior attorney Jerry Whitmore, consultant for the State Department of Education, provided notices to Cunningham regarding the complaint and investigation. Cunningham sent his original teaching certificate to the investigator, stating that he should not be investigated as his certificate was no longer valid. The investigation continued, again with notice to Cunningham. He declined to participate in an informal conference and refused to indicate on the Election of Rights form provided to him which option he chose in response to the complaint: voluntary surrender for permanent revocation, admission of allegations and request for informal hearing, or dispute of allegations and request for a formal hearing by the Division of Administrative Hearings. Instead, he appended a separate statement to the form disputing the allegations and arguing that he was not a valid certificate holder as his certificate was based on a correspondence course.
Recommendation Based on the foregoing, it is RECOMMENDED that David Martin Cunningham's Florida teaching certificate be permanently revoked. DONE AND ORDERED this 26th day of January, 1988, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1988. COPIES FURNISHED: J. David Holder, Esquire RIGS BY & HOLDER 325 John Knox Road Building C, Suite 135 Tallahassee, Florida 32303 Mr. David Cunningham 8775 20th Street, #921 Vero Beach, Florida 32960 Karen Barr Wilde Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32399 Martin B. Schapp Administrator Professional Practices Services 319 West Madison Street Room 3 Tallahassee, Florida 32399
The Issue Issues for consideration in this case include whether there exists an adequate factual basis for Petitioner Duval County School Board (the Board) to terminate Respondent's employment as a principal and teacher for those violations of the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida, 1941, as amended (the Act), which are alleged by the Board's Notice of Dismissal; and whether there exists an adequate factual basis for the Education Practices Commission (EPC) to revoke or suspend Respondent's teaching certificate or otherwise discipline Respondent for violations set forth in the Amended Administrative Complaint.
Findings Of Fact Respondent holds Florida Educator's Certificate number 263958, covering the areas of physical education and school principal (all levels). The certificate is valid through June 30, 2001. Respondent is a certified teacher who, on the basis of his long-term employment by the Board, has tenure as a result of the length of his service in a satisfactory capacity. Respondent was employed as the Principal at Sandalwood High School by the Board from 1988 through the spring semester of 1994. Commencing in the summer of 1994 and continuing through October 20, 1995, Respondent was employed by the Board as Principal at Forrest High School. Respondent has been removed from his position as Principal of Forrest High School, but continues as a salaried employee of the Board pending resolution of the charges which form the basis for this proceeding. During Respondent's tenure as Principal at Forrest High School, he supervised teachers Julie T. Lee, Kimberly L. Smith, Pamela W. Bean, and Karen E. Jones. Julie T. Lee, Teacher During the 1994-1995 school year, Lee was both the Student Activities Director and the Cheerleading Coach for Forrest High School. In addition, she taught two classes on the subject of ecology. As Student Activities Director, she had an office centrally located, apart from the classroom she used. In November of 1994, Respondent called Lee into his office. He shut and locked the door. He asked Lee to sit down in a chair that Lee noted had been turned and was out of place. She sat down. Respondent then went behind her and proceeded to rub her shoulders. Lee was uncomfortable and did not welcome or encourage Respondent's actions. On February 6, 1995, Respondent again called Lee into his office and shut and locked the door. After a conversation with Lee, Respondent approached Lee and said he need a hug. He proceeded to hug Lee without her consent. In May of 1995, while Lee was using the telephone in the Principal's office for a long distance call, Respondent returned unexpectedly, shut and locked the door, and sat down in a chair behind Lee. He proceeded to grab Lee about her hips and pull her down to sit in his lap. He told her if she would take care of him, she could have anything she wanted at the school. Lee got up, said she would take care of student activities and left. About a week later, Respondent encountered Lee outside her office and asked her if she had thought about his offer. Lee acted as if she didn't know what Respondent was talking about. Later, before the end of the school year, Respondent informed Lee that he was moving her office. The new location for Lee's job as Student Activities Director was a weight room near the school gym. The room was bright red, smelled of sweat, and was located in an out of the way place for purposes of student activities. Lee commenced using the new location prior to the end of the school year for a period of approximately four weeks. At the end of the four week period, Respondent came to Lee's office and told her that she had one hour in which to move. The new office was a former special education classroom at the other extreme end of the building, away from a central location, flooded with water and dirty. A few days thereafter, Respondent also told Lee that she would have to teach three out-of-field social studies classes in addition to the Cheerleading Coach and Student Activities Director jobs. Lee felt she could not do all three jobs under any circumstances. Further, she felt that teaching a majority of out- of-field classes would subject her to being surplussed the following year unless she became certified in those areas in the interim. Lee did not accept the justification that the additional class assignment was purely the result of budgetary constraints and felt that she was being subjected to retaliation for not meeting Respondent's sexual overtures. She talked with Mark Scott, a music teacher, about the matter on September 18, 1995. Scott had heard about difficulties that another teacher was having with Respondent. Scott revealed his discussion with the other teacher, Kimberly Smith, to Lee. Lee subsequently contacted Smith. Kimberly Smith, Teacher Sometime near the middle of the 1994-1995 school year, Respondent walked up behind Smith in the school library and massaged her shoulders. Smith did not welcome or invite Respondent's conduct. On or about June 14, 1995, Respondent asked Smith into his office and locked the door. After a conversation relating to her resignation as basketball coach, Respondent asked Smith for a hug. As Smith attempted to pull back from the hug, Respondent pulled Smith against his body and with his face on her neck told her that she smelled good. Respondent then told Smith to get out of there before he forgot who he was. The next school year, on September 18, 1995, Respondent approached Smith in the hallway near the library and after some conversation grabbed her arm, pulled her to him and requested that Smith come to his office and give him "some tender loving care." If she complied, Respondent promised to "see what I can do for you." Smith told Jon Nerf, an English teacher at Forrest High School, about the September 18, 1995 incident shortly after it occurred. Nerf's testimony establishes that Smith was emotionally upset by Respondent's action. Pamela W. Bean, Teacher In April of 1995, Respondent asked Pamela W. Bean, a teacher, to come into his office when she asked to talk with him. He closed the door. After she was seated and talking, Respondent told Bean that she "looked stressed." He stepped behind her and began to rub her shoulders. When Bean got up, Respondent told her that he "needed a hug." Bean, nonplussed by the unsolicited and unwelcome advance of Respondent, complied with a brief hug and left. The next day, a similar incident with Bean occurred in Respondent's office. Again, Respondent's back rub and hug overtures were unsolicited by Bean who complied again with Respondent's request for a hug. Karen Jones, Teacher In the spring of 1995, Karen E. Jones, another teacher, asked to speak with Respondent. He asked her into his office and closed the door. Respondent then told Jones "I need a hug" and proceeded to hug her. After hugging Jones, Respondent told her that "we need to do that more often." In the first half of September of 1995, Respondent asked Jones to come into a room near his office called "Trawick's Trough." After entering the room, he again asked for a hug and hugged Jones. Jones did not solicit or welcome the hug. Jones later confided prior to initiation of any formal charges against Respondent in her long-term friend, Susan Ingraham, who is a school board employee, regarding Respondent's overtures. Julie A. Gray, Teacher Julie A. Gray was a first year teacher of Spanish and the yearbook sponsor at Sandalwood High School during the 1991-1992 school year when Respondent was her supervisor and the Principal at that school. Respondent approached Gray in the hallway during the early part of that school term. Respondent told Grey that he liked to get hugs from his faculty members. Gray patted him lightly on the shoulders. Respondent then said,"oh, I didn't mean here. I meant in my office." Later in the school term, Gray went to report to Respondent that all the yearbooks had been sold. Gray found Respondent near the bookkeeper's office and started talking to him. He leaned over and tried to kiss her on the mouth. When she backed away, Respondent tried to hug Gray. She was embarrassed by the incident and informed Peggy Clark, a professional support staffer for new teachers, that Respondent had made remarks of a sexual nature to Gray. Gray's roommate was also informed by Gray regarding Respondent's attempt to kiss Gray. The Teachers As a result of Lee's conversation with Mark Scott, Lee subsequently compared experiences with Smith. Bean, assigned by Respondent to sit in the student activity office during one of Lee's social studies classes also had a discussion with Lee. The three, Lee, Smith and Bean, decided to lodge complaints with the school administration and did so in early October of 1995. Lee felt she had not choice if she did not want to lose her job. Smith would have reported Respondent's behavior toward her earlier, but felt that she was alone and could not succeed. Bean, likewise, had felt she was alone and would not be believed over the word of a principal. Jones learned about the other teachers and their grievances a couple of weeks following Respondent's last advance toward her and decided to join the others in making a complaint. Gray had considered bringing sexual harassment charges against Respondent in the spring of 1992, but felt it would simply be her word against Respondent. She decided to come forward with her allegations in response to requests by the Board's representative who had learned of Respondent's behavior in 1992 toward Gray. Based on their candor and demeanor while testifying, as well as the consistency of their testimony with earlier statements made by them to persons with whom they spoke following various incidents, the testimony of all five teachers, Lee, Smith, Bean, Jones, and Gray, is fully credited and establishes that Respondent's conduct toward them was intimidating and adversely affected their abilities and enthusiasm for teaching in such situations. Stefani Powell, Contract Manager Stefani Powell was a district supervisor for ARAMARK, the operator of the Board's food service in the school system during the 1994-95 school year. In her capacity, Powell managed 14 school cafeterias, including the one at Forrest High School. Respondent, as the Principal at Forrest, was a client of ARAMARK's, oversaw what happened in the cafeteria, and approved certain aspects of the cafeteria's functioning. In meetings with Powell in his office, Respondent began closing and later locking the doors, commencing in October of 1994. He initiated hugs with Powell at the end of these meetings. On approximately eight to 10 occasions, the last in January or February of 1995, Respondent hugged Powell. Initially, the hugs were light, but progressed and grew stronger with Respondent eventually placing his hand on Powell's back and pushing inward. On the last occasion, Respondent kissed Powell on the cheek. None of these attentions by Respondent was solicited by Powell and were unwelcome. Since Respondent's advances made Powell uncomfortable, she eventually confided in her supervisor who advised that Powell always take someone with her or ensure the presence of a third person at conferences with Respondent. Powell followed this practice with regard to future meetings with Respondent. After reading in the newspaper of the allegations of the teachers at Forrest High School, Powell told her mother, a school board employee, of her experiences with Respondent. As a result, Powell was put in touch with the Board's investigator and her complaint against Respondent followed. Due to her candor and demeanor at the final hearing, as well as consistency of her testimony with statements made by her to others, Powell's testimony is totally credited. Dishonesty In The Course Of Employment Carol Abrahams was a clerk one at Forrest High School during the 1994-1995 school year. She shared a social relationship with Respondent and his wife. In April of 1995, Respondent made Abrahams the Principal's secretary. Abrahams was a clerk one. A clerk three is the customary rating and higher paying position normally assigned duties as a Principal's secretary. Respondent sought to augment Abrahams' pay since she was paid less than a Principal's secretary would normally receive. Respondent directed the use of Community School funds to pay Abrahams for work after the normal school day hours. Commencing with the beginning of the 1995-1996 school year, Abrahams was paid $9.50 per hour for the hours of 3:30 p.m. to 6:30 p.m. each day that Community School functioned, Monday-Thursday, through September of 1995. Abrahams did not work during all the hours for which she claimed payment for the period of August 23, 1995 through September 28, 1995. Specifically, Abrahams went to an aerobics class conducted at Forrest High School from 3:30 until 4:30 p.m. almost every Monday, Wednesday and Thursday of each week during August and September, 1995. On three payroll hour certifications signed by Respondent, payment was made to Abrahams for a total of 16 hours during 16 days that were not actually worked at the times claimed. Respondent knew that Abrahams was attending the aerobics classes, but it was assumed by he and others that Abrahams would make up the missed hours. Abrahams testimony that she did school work at home, on weekends and at other times in an amount of hours sufficient to more than make up for the hours claimed on the subject pay roll certifications, while creditable, is not corroborated by any record of such "comp" time and cannot serve to extinguish the commission by Respondent of the technical violation of approval of those time sheets for subsequent payment when he knew those records were not accurate. Conduct And Effectiveness Respondent's misconduct, as established by the testimony of Lee, Smith, Bean, Gray, Jones and Powell, constitutes personal conduct reducing Respondent's effectiveness as an employee of the Board.
Recommendation Pursuant to provisions of disciplinary guidelines contained within Rule 6B-11.007, Florida Administrative Code, it is RECOMMENDED that a final order be entered by EPC revoking Respondent's teaching certificate for a period of two years, with recertification at the conclusion of that time conditioned upon Respondent's acceptance of a three year probationary period upon terms and conditions to be established by the EPC, and it isFURTHER RECOMMENDED that a final order be entered by the Board dismissing and discharging Respondent from his position of employment with the Board.DONE AND ENTERED this 13th day of December, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1996. COPIES FURNISHED: Ernst D. Mueller, Esquire Office of the General Counsel City of Jacksonville 600 City Hall 220 East Bay Street Jacksonville, Florida 32202 J. David Holder, Esquire 14 South 9th Street DeFuniak Springs, Florida 32433 William J. Sheppard, Esquire Sheppard and White, P.A. 215 Washington Street Jacksonville, Florida 32202 Karen Barr Wilde, Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8154
The Issue Whether Petitioner Rayburn should have been re-nominated and reappointed by Respondent as a teacher aide.
Findings Of Fact Petitioner, Doris Faye Rayburn was employed by the School Board of Leon County, Florida from 1973 to 1977: 1973-74 teacher aide, Nims Middle School; 1974-75 teacher aide, Nims Middle School; 1975-76 secretary/bookkeeper, Nims Middle School, later transferred during the school year to a teacher aide position at Nims Middle School; 1976-77 teacher aide, Nims Middle School. She was not reappointed for the 1977-78 term and thereupon filed a grievance procedure and then a petition for this administrative hearing. Petitioner's contract of employment as a teacher aide each year was for 180 days and included the right to participate in the State Personnel Retirement System to accumulate sick leave, and participate in the payroll deduction plan for 12 months insurance coverage. Thirty-six of the 165 teacher aides employed by the School Board in 1976-77 were not reemployed including Petitioner. The procedure for employment of teacher aides is by a recommendation from the Principal to the School superintendent, a nomination by the Superintendent and subsequent approval by the School Board. This procedure takes place each year for each teacher aide. Petitioner was not promised reemployment and was not reemployed. The principal testified that his decision not to recommend Petitioner for reemployment was not based alone on her comments to the Superintendent's wife or for things she had said concerning the operation of the school, although he was aware of her activities. There were some complaints about Petitioner "over- stepping" her job and posing as a counselor. After the expiration of Petitioner's last contract two assistant principals urged the Principal not to recommend Petitioner for future employment. Petitioner satisfied at least two guidance counselors with whom she worked. She is active and interested in school activities. Petitioner feels that she was not reappointed because of things she said concerning the school and its policies. She wanted to be reappointed and had so planned. Petitioner contends: Petitioner was denied employment as a result of exercising her first amendment right of freedom of speech. Mrs. Rayburn voiced her general concerns about the quality of education provided by the school system. These comments were within her right as a public employee, parent and citizen to publicly comment on events of community interests and her speech did not disrupt the efficiency of providing educational services. Section 231.141, Florida Statutes, gave Mrs. Rayburn an objective expectation in her employment as a teacher aide, protected by the fourteenth amendment. That she had "de facto" tenure and should have been reemployed. Respondent contends: Petitioner was a "non-instructional employee" and not entitled to tenure under the statutes. The fact that Mrs. Rayburn had been appointed to four previous years and the fact that 78 percent of the 1976-77 teacher aides were reemployed did not give Petitioner a constitutionally protected interest in continuing employment. That the incident of the comments Petitioner made regarding the school policy to the School Superintendent's wife was not constitutionally protected speech and that there is no showing that the Superintendent's decision not to again nominate her for employment as a teacher aide was related in any way to any speech or communication by Petitioner.
Recommendation Dismiss the petition. DONE AND ENTERED this 9th day of June, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joyce Davis, Esquire Steven Seliger, Esquire Legal Services of North Florida, Inc. 822 North Monroe Street Tallahassee, Florida 32303 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Michael Dodson, Esquire Post Office Box 391 Tallahassee, Florida 32301
Findings Of Fact Respondent is an annual contract teacher with the Dave County Public Schools and hold a Florida State teacher's certificate. Although she had worked as a teacher assistant in the past, her first year of employment as a full time teacher was the 1980-81 school year. Respondent was a teacher at Melrose Elementary School for the 1981-81 school year. At the beginning of the school year, she was assigned to teach a Compensatory Education Class. These are small classes and, in Ms. Harper's case, never exceeded 11 students. She was, however, required to keep and retain student records to enable subsequent teachers to determine at what level the student was functioning. After Respondent was transferred from the Compensatory Education classroom, the assistant principal requested that she turn in the records for the class. Respondent stated that she had destroyed them. Respondent's next assignment at Melrose Elementary School was as the teacher of a fifth-sixth grade combination regular education class. The assistant principal officially observed Respondent in the classroom three times and unofficially observed her on additional occasions. She found that Respondent lacked effective instructional planning based on Respondent's failure to complete lesson plans. The collective bargaining agreement between the School Board and the Respondent's union stated that lesson plans were an essential part of the teaching process and a proper subject for evaluation. On one occasion, the school was preparing for and audit. Auditors (administrators from other schools) check teacher's plan books, grade books and other teaching materials. The assistant principal contracted Respondent several times in advance of the audit in an attempt to prepare her for it. However, Respondent failed to develop the required lesson plans, so the assistant principal wrote out a week's plans for her. She asked Respondent to take the plans home over the weekend and copy them in her own handwriting. The following Monday at the beginning of the audit, Respondent had only filled out plans for Monday, Tuesday and Friday. There were no lesson plans to be delivered to the auditors regarding Wednesday or Thursday. Testimony of Respondent's supervisor established that she was unable to control the students in her classroom, primarily because she did not assign them anything to do. Furthermore, she sent her students out to play without supervision and left her classroom unattended on several occasions, even though she had previously been instructed by her supervisor not to do so. Respondent received an unacceptable performance rating in the area of "techniques of instruction." This rating was based on the fact that Respondent did not pretest her students and therefore had no knowledge of what the student did or did not know, what he needed to be taught or where to place him in the classroom. As a result, she attempted to teach students division when those students had not yet mastered prerequisite skills. She did not divide her class into ability groups so that she could teach groups of students at their levels of comprehension, and she did not maintain student profiles which would have shown her a particular student's abilities and deficiencies. Respondent either did not assign homework to her students or they did not return it because she had no records to indicate such assignment or files containing student homework. Her records of student grades were incomplete and only sporadically maintained. In the spring of 1982, two students from Respondent's class ran into the principal's office crying. The female student had welts on her chest and face; and the male student had similar injuries to his arms. These injuries were the result of an attack by Respondent. She had not been authorized to administer corporal punishment by her supervisor. Although there was another incident where Respondent chased a student with a ruler, this was the only situation in her teaching career where her loss of control had serious consequences. She appears to regret this incident. Ms. Harper was reassigned to South Hialeah Elementary School for the school year 1982-83. When she reported to South Hialeah Elementary School on September 20, 1982, she was given a lesson plan format, a teacher handbook and other pertinent teaching materials. Respondent received a two day orientation during which she was permitted to read the handbook, observe other teachers and talk with the grade level chairman. She was given instruction in writing lesson plans in the format used throughout the county and required by the UTD-School Board Contract. She was then assigned a regular fourth grade classroom. On her second day of teaching, the assistant principal noted an unacceptable noise level emanating from Respondent's classroom during the announcement period. When she walked into the room, she found Respondent preparing her lesson plans with the students out of control. The assistant principal advised Respondent that this was not the proper time to prepare lesson plans. The next day the situation was the same, and fights broke out between students. The assistant principal was concerned for the safety of these students because of the fights and because Ms. Harper's classroom was on the second floor and students were leaning out of the windows. On October 4, 1982, the assistant principal conducted a formal evaluation of Respondent's classroom teaching, and initially found Respondent preparing lesson plans and not instructing or supervising her students. During the reading lesson, Respondent did not give individual directions to the students, but merely told them all to open their books to a particular page. Since the students were not all working in the same book because they were functioning at different levels of achievement, this created confusion. Finally, the students who had the same book as Respondent were instructed to read, while other students did nothing. After a brief period of instruction, the class was told to go to the bathroom even though this was the middle of the reading lesson and not an appropriate time for such a break. The assistant principal noted that Respondent did not have a classroom schedule or rules. The classroom was in constant confusion and Respondent repeatedly screamed at the children in unsuccessful attempts to maintain order. The assistant principal determined that these problems had to be addressed immediately. Accordingly, in addition to a regular long-term prescription, she gave Respondent a list of short-term objectives to accomplish within the next two days. These objectives consisted of the development of lesson plans and a schedule, arranging a more effective floor plan in the classroom, making provisions for participation by all of the students and developing a set of classroom rules. The assistant principal advised Respondent that if she had any difficulty accomplishing these objectives, she should contact her immediately. The short-term objectives were never accomplished. Respondent did not develop classroom rules. Although the assistant principal and other teachers attempted to teach her to write lesson plans, this was relatively unsuccessful. The principal observed the classroom on October 6, and found that no improvements had been made. She also noted that Respondent had not complied with the outline for lesson plans required by the contract between the UTD and the School Board. Neither had she complied with school's requirements for pupil progression forms. The principal advised Respondent to attempt once again to work on the short-term prescription assigned on October 4, 1982. Subsequent observations and assistance did not result in any noticeable improvement. Respondent was unable to understand the need for organizing students in groups according to their abilities. Her students contained to wander aimlessly about the classroom. She was unable to document required student information even after repeated demonstrations. She did not test students and she failed to record their grades, except sporadically. Other teachers and parents complained about classroom conduct. Some parents requested that their children be moved out of Ms. Harper's class. Others complained to school officials about telephone calls from Ms. Harper at 2:00 a.m. or 6:00 a.m. Even the school custodian complained because Respondent's students repeatedly threw papers out of the windows. The principal arranged for Respondent to meet with the grade level chairman and the assistant principal to learn to develop lesson plans. She obtained information about classes at the Teacher Education Center of Florida International University and directed Ms. Harper to attend the classes. She subsequently determined that Respondent had not attended. Respondent told the principal that she could not attend because of car trouble. At the hearing, Respondent stated that not only did she have car trouble, but since she was a single parent, she lacked the time and money to attend the classes. She conceded, however, that the classes were free. In a further effort to assist her, Respondent was excused from her regular classroom duties to observe successful teachers. On one occasion she was found taking a coffee break instead. Again, there was not improvement apparent from this remedial measure. At the principal's request, the School Board's area director observed Respondent on November 11, 1982. Her testimony established that Respondent worked with only one group of three students in the classroom and the reading lesson being taught to those children was below their appropriate level. She also observed that there were no records indicating the progress of Respondent's students and that the students were talking continually. Due to her numerous difficulties in teaching and the lack of progress in correcting the deficiencies, the principal, assistant principal and area director concluded that Respondent lacked the requisite competence to continue in her contract position. A recommendation of dismissal to the School Board followed on January 6, 1983, Respondent was suspended. After her suspension, Respondent secured employment as a teacher of English for speakers of other languages (ESOL) at the Tri-City Community Association. Testimony of its director established that Respondent is an effective teacher of ESOL and that she trains other teachers to perform this function.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's Florida teaching certificate and providing the right of reapplication after one year. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Craig R. Wilson, Esquire 315 Third Street, Suite 204 West Palm Beach, Florida 33401 Ellen Leesfield, Esquire 2929 S.W. Third Avenue Miami, Florida 33129 Donald L. Griesheimer, Director Education Practices Commission Department of Education The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 =================================================================
Findings Of Fact Thomas L. Berkner, Petitioner, holds a continuing contract status as principal of elementary school in Orange County. During the 1977-1978 school year Petitioner was assigned as principal of the Winter Garden Elementary School which had a student enrollment of approximately 250 and consisted of kindergarten, first and second grades only. The Orange County School Board consolidated Winter Garden and Dillard Street Elementary Schools for the school year 1978-1979 leaving one principal for the school which retained the separate facilities, but was called Dillard Street Elementary School. The job of principal of the consolidated schools was given to the Dillard Street School principal and Petitioner was transferred to the position of Program Coordinator, ESEA Title I at the same salary he was paid as principal. The ESEA Title I Program is a federally funded project to serve economically disadvantaged and educationally deprived or disadvantaged children in grades 1, 2, and 3 but math is extended to grades 4, 5, and 6. The pay grade for Program Coordinator Title I was pay grade 46 and when first assigned Petitioner's personnel records reflected this pay grade (Exhibit 3). However, the records were corrected to reflect his continuing contract status and his pay grade was increased to 48 (Exhibit 4) the same pay grade for elementary school principals for schools with enrollment below 800. Although program coordinators are on annual contract status, Petitioner does not, while serving in this capacity, lose the continuing contract status as an elementary school Principal which he acquired in 1970. Scholastic and experience requirements for various positions in the Orange County school system are revised when these positions are advertised for applicants and generally reflect the highest qualities available in the local job market. At the present time elementary school principals and program coordinators are required to hold a masters degree. In addition program coordinators must be certified in elementary education and supervision, and have a minimum of five years teaching experience at the elementary level. Elementary principals must be certified in elementary school administration and supervision, and have a minimum of five years teaching experience (Exhibits 5, 7, and 9). Both principals and program coordinators perform primarily administrative functions as opposed to teaching functions. The principal is given overall responsibility for the school to which he is assigned and has certain statutory duties and authority that are not visited upon other positions. These include administrative responsibility for evaluating the educational program at his school, recommending the transfer and assignment of personnel at his school, administrative responsibility for school records, authority to administer corporal punishment and suspension of students, and perform such other duties as may be assigned by the Superintendent. Those duties assigned by the Superintendent are contained in the Job Description, Elementary School Principal (Exhibit 7) and phrased in the lexicon of education administrators, call upon the principal to promote, develop, coordinate, formulate, involve, manage and initiate programs and relationships to optimize the effectiveness of the school. The job description of the Program Coordinator ESEA, Title I (Exhibits 5 and 9) assigns to him responsibility for supervision of the Title I Program. The program coordinator's typical duties include interpreting the philosophy and goals of the program, assisting teachers, planning activities, participating in program planning, assisting principals and staffs, preparing and submitting reports and records, and performing other duties that may be assigned. Both jobs involve dealing with teachers and students, supervision, and administrative functions in carrying out the program for which each is responsible. The principal carries out his duties in the school to which he is assigned and works from his office while the program coordinator is responsible for the Title I program in several schools and spends a large part of his time away from the "office" he shares with other program coordinators. The principal has a secretary while the program coordinator must share a secretary with other program coordinators. However, one witness described the secretary at one elementary school as a school secretary and that the secretary did not work solely for the principal. Of those 15 typical duties of an elementary school principal listed on Exhibit 7, the program coordinator performs all but 5 and they involve duties that may be described as school-oriented rather than program-oriented. Of those 7 typical duties listed on Exhibit 9, Job Description for ESEA Title I Program Coordinator, the elementary school principal performs all except serve on Title I advisory council. Several witnesses testified that the position of principal was more prestigious than that of program coordinator, however, when all the evidence is considered it appears that prestige, like beauty, is in the eye of the beholder. While testifying in his own behalf Petitioner averred that as a program administrator he had no administrative duties and no personnel duties. Other program coordinators testified that they did have administrative and personnel duties. Petitioner acknowledged that most of the typical duties listed on Exhibit 7 were also performed by program coordinators.
