The Issue Whether just cause exists to terminate Respondent from employment with the Brevard County School Board.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools in Brevard County, Florida. This includes the power to discipline employees, such as teachers. § 4, Article IX, Fla. Const.; §§ 1001.42(5), 1012.22(1)(f), and 1012.33, Fla. Stat.1 Respondent is a classroom teacher, and as such, the terms and conditions of her employment are governed by the collective agreement between the School Board and The Brevard Federation of Teachers, Local 2098. Respondent has a Bachelor’s degree in exceptional education. On or about November 9, 2006, Respondent, pursuant to an annual contract, was hired by the School Board to provide services as a classroom teacher. Beginning in the 2009-2010 school year, Respondent continued her employment with the School Board pursuant to a professional services contract. During all times relevant to this proceeding, Respondent taught at Hoover Middle School, which is under the jurisdiction of the School Board. At the commencement of the 2014-2015 school year, Respondent taught exceptional education (ESE) students in a self-contained, supported-level class. At approximately the midway point of the 2014-2015 school year, Respondent began teaching a resource math class which was comprised entirely of ESE students. Beginning in the 2017-2018 school year, and continuing through the 2018-2019 school year, Respondent taught one resource math class for a single class-period of the day, and she co-taught, or “pushed-in,” for the other five instructional class periods. In both settings, Respondent taught math to ESE students. By correspondence dated March 26, 2019, Superintendent Mullins advised Respondent of the following: Pursuant to Florida Statute 1012.34, you are being recommended for termination of your Professional Services Contract due to unsatisfactory 1 All subsequent references to Florida Statutes will be to the 2018 codification, unless otherwise indicated. Performance …. The actions leading to this recommendation are as follows: On October 29, 2018, you were provided a 90-day notice advising of performance-related concerns based upon three years of unsatisfactory annual evaluations. Several performance review meetings were held with you, your union representative, and your school Principal to discuss your progress. A review of your past evaluations indicates several attempts at corrective activities through the use of District Peer Mentors and Resource Teachers. After the completion of the 90-day plan, adequate progress was not obtained and is grounds to sever the Professional Services Contract. The School Board uses an “Instructional Personnel Performance Appraisal System” (IPPAS) as a guide when evaluating a teacher’s performance. According to the IPPAS manual, classroom teachers are evaluated on a rubric which consists of five dimensions. The first dimension focuses on “instructional design and lesson planning.” The second dimension focuses on the “learning environment” created and fostered by the teacher. The third dimension focuses on “instructional delivery and facilitation.” The fourth dimension focuses on “assessment,” and the fifth dimension focuses on a teacher’s “professional responsibility and ethical conduct.” IPPAS is approved annually by the Florida Department of Education (FLDOE), and the School Board meets regularly with The Brevard Federation of Teachers, Local 2098, to address any issues concerning the evaluation process. Teachers and evaluators receive yearly training, which covers the various components of the evaluation process. Pursuant to IPPAS, and related statutory provisions, classroom teachers are evaluated annually. The overall score given to a teacher on the annual evaluation is determined by how a teacher scores in the areas of “Professional Practices Based on Florida’s Educator Accomplished Practices (Professional Practices),” and “Individual Accountability for Student Academic Performance Based on Identified Assessments (Student Performance).” The Professional Practices category accounts for 67 percent, and Student Performance accounts for the remaining 33 percent of a teacher’s annual evaluation score. For purposes of quantifying a teacher’s annual evaluation, IPPAS identifies the Professional Practices category as “Part 1 of the Summative Evaluation,” and the Student Performance category as “Part 2 of the Summative Evaluation.” Part 1 of the Summative Evaluation is completed in the spring of each school year and consists of the supervising principal’s annual evaluation of the teacher, the teacher’s self-assessment, and the collaboration and mutual accountability score. The evaluative components of Part 1 of the Summative Evaluation are comprised of the previously referenced “five dimensions.” Part 2 of the Summative Evaluation is determined based on student academic performance data (VAM score) as calculated by the FLDOE. VAM scores are released by FLDOE in the fall, and these scores reflect student performance for the preceding school year. Consequently, a teacher will not receive an overall annual evaluation score for the immediate preceding school year until the fall semester during which VAM scores are available. As a practical matter, this explains, in part, why the recommendation for termination letter sent to Respondent by Superintendent Mullins was issued on March 26, 2019.2 2015-2016 SCHOOL YEAR Respondent, on or about April 25, 2016, received Part 1 of her Summative Evaluation for the 2015-2016 school year. Respondent received a score of 27.71 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the category of “Needs Improvement.” On or about November 2, 2016, Respondent received Part 2 of her Summative Evaluation for the 2015-2016 school year. Respondent received a VAM score of 56.71 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2016-2017 SCHOOL YEAR Respondent, on or about April 5, 2017, received Part 1 of her Summative Evaluation for the 2016-2017 school year. Respondent received a score of 20.42 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about November 13, 2017, Respondent received Part 2 of her Summative Evaluation for the 2016-2017 school year. Respondent received a VAM score of 50.42 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” 2 VAM scores for the 2017-2018 school year were released on or about October 19, 2018. As discussed elsewhere herein, Respondent was placed on 90 days probation following the release of her VAM score. The timing of the release of the VAM score, coupled with the 90-day probationary period and related matters, account for the March 2019 date of Superintendent Mullin’s letter to Respondent. 2017-2018 SCHOOL YEAR Respondent, on or about May 3, 2018, received Part 1 of her Summative Evaluation for the 2017-2018 school year. Respondent received a score of 34.58 out of a maximum available score of 67 points. Respondent’s Part 1 Summative score placed her in the “Needs Improvement” category. On or about October 19, 2018, Respondent received Part 2 of her Summative Evaluation for the 2017-18 school year. Respondent received a VAM score of 64.58 out of a maximum available score of 100 points. Respondent’s VAM score placed her in the “Needs Improvement” category. The combined Part 1 and Part 2 scores resulted in Respondent receiving an overall annual evaluation rating of “Needs Improvement.” A PLAN FOR ADDRESSING PROFESSIONAL DEFICIENCIES The School Board, in order to address Respondent’s professional deficiencies as identified during the relevant evaluation periods, provided support to Respondent through the utilization of Professional Development Assistance Plans (PDAPs). PDAPs are designed to provide a teacher with opportunities for professional development, which includes access to online resources, training activities and courses, and opportunities to work with School Board resource and peer mentor teachers. The School Board, acting through Respondent’s supervising administrators, agreed in the PDAPs to support Respondent’s professional growth and development as follows: By providing access to the “District Peer Mentor Teacher for collaboration on dimension 3.” By conducting “informal observations documented in ProGOE with feedback for improvement.” By providing “resources on utilizing formative assessment to check for understanding.” By providing “resources regarding implementing differentiated instruction.” By providing “resources on the utilization of Webb’s Depth of Knowledge.” By providing “exemplary sample lesson plans as a model … to follow.” By providing “pacing guide if needed.” By meeting every two weeks to review weekly lesson plans. By providing Respondent with “an exemplary teacher to observe, as well as a substitute [teacher] for class coverage during observation.” By providing a list of Professional Development courses on classroom management, as well as a substitute teacher to cover Respondent’s class while she attends the course. By providing “assistance and specific feedback from school based coaches.” By completing “informal observations on a bi- monthly basis, and provid[ing] feedback.” The evidence establishes that the School Board honored its commitment to Respondent as outlined in the respective PDAPs. 90 DAYS OF PROBATION, AND RECOMMENDATION FOR TERMINATION By correspondence dated October 29, 2018, the School Board advised Respondent of the following: In accordance with section 1012.34(4), F.S., this shall serve as the District’s notification of unsatisfactory performance. Please be advised that your Professional Service Contract for the 2018-19 academic year is on a probationary status for ninety (90) days. Your contract is being placed on probation due to your receiving an overall “Needs Improvement” rating on your last three (3) consecutive annual performance evaluations. See also section 1012.22, F.S. During the next ninety (90) days, you will be evaluated periodically. You will be apprised of any progress achieved in writing. You will work with the administration of your school to assist you in obtaining opportunities to help correct any noted deficiencies. After February 25, 2019, the ninetieth (90th) day, administration has fourteen (14) days to assess your progress. If no improvement is shown, administration will notify the Superintendent if you do not rate an overall Effective on the Summative Part 1 of your evaluation. Sincerely, Burt Clark, Principal Hoover Middle School Respondent, during her 90-day probationary period, continued to receive professional development services from the School Board, which included working with a peer mentor teacher, participating in CHAMPs training, receiving assistance from a math content specialist, and observing an exemplary math teacher. Burt Clark was the principal at the school where Respondent worked when she was placed on probation. As the principal, Mr. Clark served as Respondent’s supervisor and was responsible for evaluating her performance. During Respondent’s probationary period, Mr. Clark regularly met with Respondent and her union representative to discuss Respondent’s progress and offer assistance. In addition to meeting with Respondent, Mr. Clark also conducted one interim evaluation, four informal observation, and two formal observations of Respondent’s performance. Mr. Clark also conducted a number of “walk-throughs,” which provided additional insight into the status of Respondent’s professional development. While it is true that Mr. Clark’s observations of Respondent mainly occurred in the classroom where Respondent was the teacher of record, as opposed to Respondent’s work as a “push-in” teacher, Mr. Clark credibly testified that he had sufficient data to assess Respondent’s performance. Mr. Clark, at the end of the probationary period, determined that Respondent’s professional deficiencies remained, and on March 6, 2019, he made the following recommendation to Superintendent Mullins: Ms. Lisa Lemieux had an overall unsatisfactory performance appraisal. We have worked with her to try to improve her instructional strategies; but, it has not been successful in changing the behavior to better serve the students assigned to her. As defined in [section] 1012.34(4), [Florida Statutes], February 25, 2019, was the 90th day since the notification of her 90-day probation for this contract year and after demonstrating no improvement on the Summative Part 1, I have assessed that the performance deficiencies have not been corrected. I would recommend the termination of her employment with Brevard Public Schools. Burt Clark, Principal Hoover Middle School After receiving Mr. Clark’s recommendation to terminate Respondent’s employment, Superintendent Mullins reviewed Respondent’s last three years of evaluations, considered the extensive support and training provided to Respondent by the School Board, and concluded that termination of Respondent’s employment was warranted and justified.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Brevard County enter a final order terminating Respondent’s employment as a teacher. DONE AND ENTERED this 16th day of March, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2020. COPIES FURNISHED: Amy D. Envall, General Counsel Brevard County Public Schools 2700 Judge Fran Jamieson Way Viera, Florida 32940 (eServed) Mark S. Levine, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Wayne L. Helsby, Esquire Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Shannon L. Kelly, Esquire Allen, Norton and Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Howard Michael Waldman Allen, Norton & Blue, P.A. 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 (eServed) Ronald G. Stowers, Esquire Levine & Stivers, LLC 245 East Virginia Street Tallahassee, Florida 32301 (eServed) Dr. Mark Mullins, Superintendent School Board of Brevard County 2700 Judge Fran Jamieson Way Viera, Florida 32940-6601 Matthew Mears, General Counsel Department of Education Turlington Building 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue is whether Petitioners are entitled to the Best and Brightest Scholarship as established and defined by section 1012.731(3)(c), Florida Statutes (2017).
Findings Of Fact In 2015, the Legislature enacted, by way of a line item in the annual appropriations bill, the Best and Brightest Program to award cash scholarships to Florida teachers who have been evaluated as “highly effective” by their school districts and who scored at or above the 80th percentile (top 20%) on the SAT or ACT when they took the test. Ch. 2015-232, § 2, line item 99A, Laws of Fla.1/ In 2016, the Legislature enacted a stand-alone statute for the Best and Brightest Program, codifying the appropriations bill language and providing that the program is to be administered by the Department of Education (the “Department”). Ch. 2016-62, § 25, Laws of Fla., codified at § 1012.731, Fla. Stat. (2016). Rather than enacting a statutory scholarship amount, subsection (5) of the 2016 version of section 1012.731 provided that the scholarships would be awarded to every eligible classroom teacher “in the amount provided in the General Appropriations Act.”2/ The 2016 statute also explained that the Best and Brightest Program was intended to provide “categorical funding for scholarships to be awarded to classroom teachers, as defined in s. 1012.01(2)(a), who have demonstrated a high level of academic achievement.” § 1012.731(2), Fla. Stat. (2016). Section 1012.01(2) defines “instructional personnel,” including “classroom teachers,” as follows: INSTRUCTIONAL PERSONNEL.— “Instructional personnel” means any K-12 staff member whose function includes the provision of direct instructional services to students. Instructional personnel also includes K-12 personnel whose functions provide direct support in the learning process of students. Included in the classification of instructional personnel are the following K-12 personnel: Classroom teachers.--Classroom teachers are staff members assigned the professional activity of instructing students in courses in classroom situations, including basic instruction, exceptional student education, career education, and adult education, including substitute teachers. Student personnel services.--Student personnel services include staff members responsible for: advising students with regard to their abilities and aptitudes, educational and occupational opportunities, and personal and social adjustments; providing placement services; performing educational evaluations; and similar functions. Included in this classification are certified school counselors, social workers, career specialists, and school psychologists. Librarians/media specialists.-- Librarians/media specialists are staff members responsible for providing school library media services. These employees are responsible for evaluating, selecting, organizing, and managing media and technology resources, equipment, and related systems; facilitating access to information resources beyond the school; working with teachers to make resources available in the instructional programs; assisting teachers and students in media productions; and instructing students in the location and use of information resources. Other instructional staff.--Other instructional staff are staff members who are part of the instructional staff but are not classified in one of the categories specified in paragraphs (a)-(c). Included in this classification are primary specialists, learning resource specialists, instructional trainers, adjunct educators certified pursuant to s. 1012.57, and similar positions. Education paraprofessionals.--Education paraprofessionals are individuals who are under the direct supervision of an instructional staff member, aiding the instructional process. Included in this classification are classroom paraprofessionals in regular instruction, exceptional education paraprofessionals, career education paraprofessionals, adult education paraprofessionals, library paraprofessionals, physical education and playground paraprofessionals, and other school-level paraprofessionals. In 2017, the Legislature amended section 1012.731(3) to establish that the scholarship award would be $6,000 for those classroom teachers rated “highly effective” who also had the requisite SAT or ACT scores: (3)(a) To be eligible for a scholarship in the amount of $6,000, a classroom teacher must: 1. Have achieved a composite score at or above the 80th percentile on either the SAT or the ACT based on the National Percentile Ranks in effect when the classroom teacher took the assessment and have been evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded, unless the classroom teacher is newly hired by the district school board and has not been evaluated pursuant to s.1012.34. * * * In order to demonstrate eligibility for an award, an eligible classroom teacher must submit to the school district, no later than November 1, an official record of his or her qualifying assessment score and, beginning with the 2020-2021 school year, an official transcript demonstrating that he or she graduated cum laude or higher with a baccalaureate degree, if applicable. Once a classroom teacher is deemed eligible by the school district, the teacher shall remain eligible as long as he or she remains employed by the school district as a classroom teacher at the time of the award and receives an annual performance evaluation rating of highly effective pursuant to s. 1012.34 or is evaluated as highly effective based on a commissioner- approved student learning growth formula pursuant to s. 1012.34(8) for the 2019-2020 school year or thereafter. Ch. 2017-116, § 46, Laws of Fla. The 2017 amendment to section 1012.731 also added a new subsection (3)(c), providing that lesser amounts could be awarded to teachers rated “highly effective” or “effective,” even if they could not demonstrate scores at or above the 80th percentile on the SAT or ACT: Notwithstanding the requirements of this subsection, for the 2017-2018, 2018- 2019, and 2019-2020 school years, any classroom teacher who: Was evaluated as highly effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded shall receive a scholarship of $1,200, including a classroom teacher who received an award pursuant to paragraph (a). Was evaluated as effective pursuant to s. 1012.34 in the school year immediately preceding the year in which the scholarship will be awarded a scholarship of up to $800. If the number of eligible classroom teachers under this subparagraph exceeds the total allocation, the department shall prorate the per-teacher scholarship amount. This paragraph expires July 1, 2020. Id. By December 1 of each year, each school district must submit to the Department the number of eligible classroom teachers who qualify for the scholarship, as well as identifying information regarding the schools to which the eligible classroom teachers are assigned. § 1012.731(4)(a)-(c), Fla. Stat. For the 2017-2018 school year, the December 1, 2017, submission deadline was extended to January 2, 2018, due to a hurricane. The School Board’s deadline for teachers to apply for the scholarship was accordingly extended from November 1, 2017, to December 1, 2017. By February 1 of each year, the Department is required to disburse scholarship funds to each school district for each eligible classroom teacher to receive a scholarship. § 1012.731(5), Fla. Stat. By April 1, each school district is required to award the scholarship to each eligible classroom teacher. § 1012.731(6), Fla. Stat. In 2018, the Legislature amended section 1012.731 to provide that a school district employee who is no longer a classroom teacher may receive the $6,000 award if the employee was a classroom teacher in the prior school year, was rated highly effective, and met the requirements of this section as a classroom teacher. § 1012.731(3)(b)2., Fla. Stat. (2018). The Legislature did not add a similar provision stating that former classroom teachers who are still school district employees remain eligible for the $1,200 and $800 awards. § 1012.731(3)(c)2., Fla. Stat. (2018). The Legislature funds the Best and Brightest Program. The School Board had no role in creating the Best and Brightest Program. The School Board is required to determine the eligibility of classroom teachers who qualify for the Best and Brightest Program pursuant to the requirements of the statute. Petitioners in this case claim entitlement only to the $1,200 award established by the 2017 version of the statute. Brenda Troutman, director of Instructional Personnel, is the School Board employee in charge of the Best and Brightest Program application and submission process. Ms. Troutman has worked for the School Board for 17 years. She has been a junior high classroom teacher and an assistant principal and vice principal at the high school level. Though no longer teaching in the classroom, Ms. Troutman retains her certifications in math grades 5-9, exceptional student education (“ESE”), educational leadership, and school principal. When working as a high school administrator, Ms. Troutman was the master scheduler for her school, meaning that she built the schedule for every teacher at the school. This task required that she become very familiar with the School Board’s course code directory. Ms. Troutman also had to understand the certification system in order to hire and assign teachers. If a teacher asked to teach a certain course, Ms. Troutman had to know both the course requirements and the teacher’s certifications to determine whether the teacher was eligible to teach the course. As part of her current position in the School Board’s human resources department, Ms. Troutman is required to know the School Board’s various job titles and descriptions. She is responsible for replacing obsolete job descriptions and posting current job descriptions on the School Board’s website. Ms. Troutman testified as to how she manages the application and submission process of the Best and Brightest Program. She starts by making herself familiar with any changes the Legislature may have made to the program. She then issues a notice to teachers about the program and the current eligibility requirements. For the 2017-2018 Best and Brightest Program, Ms. Troutman prepared a draft email that Superintendent Addison Davis reviewed and sent to all of the school district’s teachers and administrators on September 28, 2017. The email explained that to be eligible for the $6,000, $1,200 or $800 scholarship, an applicant must meet the definition of classroom teacher as set forth in section 1012.01(2)(a). Ms. Troutman developed the School Board’s application for the Best and Brightest Program, based upon her understanding of the statutory requirements. All completed applications for the Best and Brightest Program come into Ms. Troutman’s office. Ms. Troutman testified that she received approximately 2,000 applications for the 2017-2018 award. Ms. Troutman, with the aid of her assistant, reviews and verifies the information on the applications. If Ms. Troutman has any questions about an application, she seeks the opinion of her direct supervisor David Broskie, the director of Human Resources. In some cases, they also have discussions with Superintendent Davis and School Board Attorney David D’Agata. The School Board employs two major data programs. FOCUS is the program/database that holds all student information, including attendance, grades, disciplinary actions, test information, and demographics. TERMS is the program/database that houses all employee information. When verifying information on the Best and Brightest Program applications, Ms. Troutman uses both FOCUS and TERMS, and on occasion conducts additional investigation. The School Board’s application asks for the teacher’s assignment. Because the application was titled “2017-2018 Clay County Application: Florida Best & Brightest Teacher Scholarship,” Ms. Troutman believed that the teachers were required to provide their 2017-2018 teacher assignments. As will be discussed in more detail below, the year of the teacher assignment was a major point of disagreement between Petitioners and the School Board. The application provided a checkmark system for the teacher to indicate which scholarship was being sought. The $1,200 scholarship line provided as follows: I am applying for the $1,200.00 highly effective scholarship. I have attached a copy of my 2016-2017 highly effective final evaluation (with student performance measures). The application’s language led Petitioners to believe that the 2017-2018 scholarship awards would be based on their teacher assignments and evaluations for 2016-2017. Ms. Troutman explained that this belief was incorrect. Eligibility for the 2017-2018 scholarship was based on a teacher’s assignment for the 2017-2018 school year. The plain language of the statute requires that one must be a “classroom teacher” in order to be eligible for the scholarship; having been a classroom teacher in a previous year does not suffice. Ms. Troutman stated that she verified with Mr. Broskie, Mr. Davis, and Mr. D’Agata that the School Board should base the award on the teacher’s 2017-2018 assignment. Petitioners, on the other hand, argue that the statutory language requires only an evaluation of “highly effective” for the 2016-2017 school year. The statute is silent as to whether a teacher applying for the $1,200 scholarship must be teaching in a classroom situation during the 2017-2018 school year. Petitioners argue that the School Board is reading a requirement into the statute that is not evident from the plain language. Ms. Troutman further explained that the applications for the 2017-2018 scholarships were to be submitted prior to the conclusion of the 2017-2018 school year. Therefore, as required by section 1012.731(3)(a)1. and (3)(c), the application requested the evaluation for “the school year immediately preceding the year in which the scholarship will be awarded.” Ms. Troutman testified that it is sometimes obvious from the teaching assignment that the teacher qualifies as a “classroom teacher.” If an application states that the assignment is “chemistry teacher” or “algebra teacher” or “fifth grade classroom teacher,” it is clear that the applicant meets the definition. Aside from verifying the assignment in the TERMS database, Ms. Troutman takes no further action. However, some applications require additional research before Ms. Troutman can conclude that the applicant qualifies as a classroom teacher. For example, Petitioner Abbie Andrews identified her assignment on her application as “classroom teacher.” Ms. Troutman went to TERMS and saw that Ms. Andrews was designated as an “ESE Support Facilitator” for the 2017-2018 school year. Ms. Troutman testified that ESE Support Facilitators are sometimes assigned to teach classes and therefore could be classified as “classroom teachers” for purposes of the Best and Brightest Program. Ms. Troutman examined both the master schedule and the teacher’s personal account in FOCUS to determine whether Ms. Andrews was assigned to teach any courses. Ms. Andrews had no teaching assignments for 2017-2018 in FOCUS. Ms. Andrews and fellow Petitioners Cherry Deaton, Donna Foster, and Danielle Perricelli held the position of ESE Support Facilitator during the 2017-2018 school year. The School Board concluded that these Petitioners did not qualify for the $1,200 scholarship because their schedules did not assign them the professional activity of instructing students in courses in a classroom situation, as required by the statute. It was undisputed that these Petitioners had been rated “highly effective” for the 2016-2017 school year. It was also undisputed that Ms. Andrews, Ms. Deaton, and Ms. Foster met the statutory definition of a classroom teacher for the 2016-2017 school year. The School Board’s general job description for an ESE Support Facilitator provides as follows: The teacher is responsible directly to the Principal. He/she provides for the instruction, supervision, and evaluation of assigned students on an as needed basis. He/she supports both general education and ESE teachers. He/she serves in a staff relationship with other teachers and supports and promotes ESE inclusion activities. (Emphasis added). The School Board contrasts this job description with that of “Classroom Teacher,” which provides: “The teacher is responsible directly to the principal for the instruction, supervision, and evaluation of students.” The classroom teacher is fully responsible for the “instruction, supervision, and evaluation” of the students in her classroom, whereas the ESE Support Facilitator performs those activities only “as needed.” The School Board also points out that, unlike a classroom teacher, an ESE Support Facilitator is not required to be certified in-field for the position. The ESE Support Facilitator is not the teacher of record for any particular course. Their schedule is fluid. The ESE Support Facilitator comes and goes as needed (“pushes in,” to use the teaching vernacular) in the classroom, and is expected to be wherever the ESE student assigned to them needs their services. Sometimes they push into the classroom and sometimes they pull students out of the class to work on a specific concept or skill. An ESE Support Facilitator is assigned “contact students” for whom individualized educational plans (“IEPs”) are prepared. The classroom teacher of record is responsible for giving the student course credit or a grade and is responsible for recording attendance in FOCUS. One-third of the classroom teacher’s evaluation is tied to student performance. Only the classroom teacher has default access to FOCUS in order to enter attendance and grade information for the students in the class. An ESE Support Facilitator must seek and be granted access to student’s FOCUS information. An ESE Support Facilitator is expected to meet with each contact student at least once a month; in practice, these meetings tend to occur more frequently. The ESE Support Facilitator goes over accommodations the student needs and assignments the student did not understand. The facilitator reteaches the course material if need be and stays in touch with the student’s teachers and parents, making sure all stakeholders in the student’s success are on the same page. The evidence presented at the hearing indicated that all of the students served by the ESE Support Facilitators in this case attended classes in regular classrooms, not in separate ESE classes. In such “inclusion” classes, the ESE Support Facilitator’s role is to push in and assist contact students in the regular classroom, ensuring that their IEP requirements are met and that the students are progressing satisfactorily through the course material. Based on these definitional and operative distinctions, Ms. Troutman considered ESE Support Facilitators to be “other instructional staff” as defined by section 1012.01(2)(d), rather than “classroom teachers” as defined by section 1012.01(2)(a). Ms. Andrews was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Andrews met the definition of a “classroom teacher” for the 2016-2017 school year. During the 2017-2018 school year, Ms. Andrews was a full-time ESE Support Facilitator at Middleburg High School, not assigned to teach any courses. In FOCUS, she was assigned as the “contact teacher” for approximately 60 students, meaning that she was primarily responsible for writing their IEPs and ensuring that they made adequate progress in their classes. She met with all of her contact students on an as needed basis, at least once per month but often as much as twice per week. However, Ms. Andrews was not listed in FOCUS as the teacher of record for any class. Even though she routinely pushed into classes to support her assigned ESE students, Ms. Andrews was not the primary teacher of record. She was there to assist her contact students with whatever they needed to learn the course, but the course was not assigned to her to teach. Ms. Andrews did not have a traditional classroom. She was not the teacher of record in any course for which students received academic credit, and she did not assign grades to students for the material she was teaching. Ms. Andrews prepared IEPs that were individualized to particular contact students. She did not prepare daily lesson plans in the manner of a classroom teacher. Ms. Andrews described her job as an ESE Support Facilitator as follows: My job is to teach, mentor, challenge students to make them -- make them ready for graduation, become productive members of society. I believe that’s the same thing a classroom teacher does. I am using the Florida standards to prepare lessons for remediation if a student needs it. I am constantly having conversations with not just students, but their parents, keeping them on track or making sure their students are on track because ultimately, a parent wants that student to graduate on time as well. I believe that the questions that are asked of me as a support facilitator are the same questions that parents would ask of a classroom teacher because they are very concerned. I am not just answering questions based on one classroom. I'm answering questions based on six classes. I'm responsible for that student being successful in six classes. The IEPs that I write, they're legally binding. I am involved in the academics, behavior, discipline. I deal with discipline problems. All of these things are the same things that a classroom teacher would deal with. I do not have a schedule in Focus; however, when a need arises, I'm there, I'm in a classroom, I'm helping, and I'm doing what's needed to be done for the kids to be successful. Ms. Deaton was employed as an ESE Support Facilitator at Middleburg High School during the 2016-2017 school year. She taught two periods of English and spent the remaining four periods fulfilling her ESE duties. She was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Deaton met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Deaton was a full-time ESE Support Facilitator at Middleburg High School, with approximately 60 contact students assigned to her in FOCUS. She was not assigned to teach any courses. If she pushed into a class to support her assigned ESE students, she was not the primary teacher of record. She was not designated as a co-teacher,3/ but she would assist teaching classes on an as-needed basis if she was not busy testing students or preparing IEPs. For those classes, she was provided access to view grades in FOCUS, but she did not have access to give grades. She would meet students as needed in her office, in another teacher's classroom, or in the computer lab. She did not develop lesson plans on her own, but provided suggestions and advice on lesson plans to the primary teacher. As an ESE Support Facilitator, Ms. Deaton did not have a classroom or teach a classroom full of students. She had no schedule assigned to her in FOCUS, but had contact students assigned to her in FOCUS. Ms. Foster was employed as an English/language arts and ESE Inclusion Teacher during the 2016-2017 school year. She taught four classes as ESE inclusion teacher. The remaining two periods were devoted to her position as ESE department head. Ms. Foster had a schedule in FOCUS. She had her own classroom and students, prepared daily lesson plans, and assigned grades. Students in her classes received academic credit. Ms. Foster was evaluated as “highly effective.” As noted above, there was no dispute that Ms. Foster met the definition of a “classroom teacher” for the 2016-2017 school year. Ms. Foster was employed as an ESE Support Facilitator and ESE department head during the 2017-2018 school year. She retired at the end of the school year, effective June 7, 2018. As an ESE Support Facilitator, Ms. Foster did not have a set schedule. Ms. Foster’s assigned ESE students did not receive academic credit for the services she provided, but her assistance was integral in helping them pass their courses. Ms. Foster assisted with an American history class during the 2017-2018 school year, but was not assigned as the primary teacher in FOCUS. Ms. Foster testified that she did not believe she had ever been identified as a co-teacher in FOCUS, though she thought she should have been. Ms. Foster testified that she had IEPs for the American history class that listed both the class setting and the service delivery method as “co-teach.” She explained that because the class had both general education and ESE students, the teacher had to be certified in both the subject matter and ESE. Because the primary teacher was certified only in the subject matter, it was necessary for Ms. Foster to co-teach the class. Ms. Foster testified that she split lesson plan preparation with the primary teacher. Ms. Foster believed she was not listed in FOCUS as the co-teacher because the school administration never bothered to remove the name of Kristin Heard, the ESE teacher originally assigned to the class, who was moved to a science class early in the year. Ms. Foster pursued the matter with the assistant principals at Lakeside Junior High, but nothing came of it. Mallory McConnell, the principal at Lakeside Junior High School during the 2017-2018 school year, confirmed that Ms. Foster was not listed as a co-teacher on the master schedule. Ms. McConnell testified that in 2017-2018 there were no “true co-teacher” situations, by which she meant two teachers who equally shared responsibility for the instruction and grading of every student in the class. Ms. McConnell was aware of situations in which a student’s IEP mandates co-teaching in a class, but she testified that she was unaware of any student at Lakeside Junior High School in 2017-2018 whose IEP required a co-teacher. Ms. McConnell conducted infrequent walkthrough observations of the American history class. She testified that she saw Ms. Foster providing support services to the ESE students but never saw Ms. Foster teaching at the front of the class. Ms. McConnell stated that she would not have expected to see Ms. Foster teaching the class or creating lesson plans for the class as a whole because those tasks were not her job responsibility. Ms. McConnell was in no position to state whether Ms. Foster did, in fact, prepare lesson plans and teach the class. Ms. McConnell was able to state that for at least one month during the school year, Ms. Foster administered tests to her ESE students, meaning that she could not have been co- teaching the American history class. Ms. Foster did not tell Ms. Troutman that she had assisted teaching the American history class during the 2017- 2018 school year, nor did she include such information on her application for the Best and Brightest Program, because she believed the award was based upon her position in 2016-2017 and because she believed the school administration’s failure to include her as teacher of record in FOCUS was an “in-house” issue. Ms. Perricelli was employed as an ESE Support Facilitator, ESE department head, and MTSS intervention team facilitator at Orange Park Junior High School. “MTSS” is an acronym for Multi-Tiered System of Support, a framework for providing support to students who are struggling academically or have an identified need in a specific area such as speech, language, or behavior. MTSS interventions may be used for regular education or ESE students. Ms. Perricelli testified that she was not the teacher assigned by FOCUS for any class in 2016-2017. In addition to her regular ESE duties, Ms. Perricelli taught “grade recovery” to two students in language arts, science, and math. Grade recovery is a class offered to students who have failed a course and lack the credits to move on to the next grade level. Ms. Perricelli designed lesson plans and curriculum assessments for each subject, graded papers and tests, and reported the students’ grades to the school. Ms. Perricelli testified that she was not given the authority to enter the grade recovery students’ grades into FOCUS in 2016-2017. She requested a course code but was never provided one. Ms. Perricelli taught grade recovery for two periods, one for each student. For the other four periods of the school day, Ms. Perricelli would push into classrooms and work with ESE students, usually in small groups with students who needed remediation. She had around 40 contact students and developed IEPs for each of them. Most of her contact students were in the classrooms that she was going into, so she would see them throughout the week. She would meet with her other contact students about once a week. Ms. Perricelli would work with the assigned teacher to modify the course material to meet the needs of the ESE students. Ms. Perricelli was evaluated as “highly effective” for the 2016-2017 school year, based on standard classroom teacher criteria. She was observed working with her grade recovery students and in the classrooms in which she pushed in. Ms. Perricelli testified that her assignments were the same for the 2017-2018 school year. She taught one student in a grade recovery course. Due to her persistence, Ms. Perricelli was able to get a course code from Ms. Troutman for the grade recovery course in 2017-2018. The grade recovery course was named “Unique Skills.” In 2017-2018, Ms. Perricelli was assigned around 70 contact students for whom she prepared IEPs. As department head, Ms. Perricelli oversaw 22 ESE instructors. She was the only ESE Support Facilitator at the school. Janice Tucker was vice principal at Orange Park Junior High School in 2017-2018. She testified that early in the school year, the assigned teacher for seventh grade math left for another county. A long-term substitute, Lashonda Campbell, took over as teacher of record. Ms. Perricelli testified that she developed some of the curriculum in Ms. Campbell’s math classes, which included ESE and non-ESE students. She stated that she taught the class alone once a week when Ms. Campbell started, then tapered off into pulling out small groups of ESE students who needed remediation. She worked with four periods of seventh grade math classes that year. Ms. Perricelli testified that she gave grades to students in those courses and gave them to Ms. Campbell for entry into FOCUS. Ms. Tucker testified that Ms. Perricelli was not a co- teacher for the math class. Ms. Campbell was the teacher of record. Ms. Tucker testified that when she observed the math class, she saw Ms. Perricelli working with small groups in the back of the class or at a table in the hallway, and Ms. Campbell at the front teaching the class. Ms. Tucker never saw Ms. Perricelli at the front of the class teaching. Ms. Tucker conceded that she had no knowledge whether Ms. Perricelli was involved in creating lesson plans or assigning grades for the math class. Ms. Perricelli was evaluated by Ms. Tucker for the 2017-2018 school year. Ms. Tucker observed Ms. Perricelli in the seventh grade math class and in the Unique Skills class. Ms. Perricelli was again rated “highly effective.” Ms. Perricelli testified that she did not mention teaching the math class on her scholarship application. She stated that she did not tell Ms. Troutman about the math class because at the time, the school was still attempting to get a full-time teacher for the class. Ms. Troutman obviously knew about the “Unique Skills” class, having issued the course code to Ms. Perricelli. Ms. Troutman testified that she consulted with Mr. Broskie and Mr. D’Agata as to whether having one assigned class in FOCUS should qualify Ms. Perricelli for the scholarship. They concluded that teaching one class with one student was insufficient to qualify as a “classroom teacher” for purposes of the Best and Brightest Program. Ms. Troutman testified that this conclusion was consistent with the School Board’s historic practice of considering two or more classes as the “cutoff” for a classroom teacher. Ms. Troutman believed that if an ESE Support Facilitator taught two classes, then she would qualify as a “classroom teacher.” Petitioner Easter Brown taught a fourth grade classroom at Grove Park Elementary School during the 2016-2017 school year and was rated “highly effective.” It is not disputed that Ms. Brown met the definition of a “classroom teacher” for the 2016-2017 school year. In 2017-2018, Ms. Brown was a full-time SPRINT specialist. “SPRINT” stands for Supervisor of Pre-Interns and New Teachers. SPRINT specialist is a support position for teacher trainees and new teachers, operating under an agreement between the School Board and the University of North Florida (“UNF”), each of which pays half of the SPRINT specialist’s salary. Ms. Brown taught field classes at UNF and conducted workshops for clinical educator training and professional development. Ms. Brown kept Grove Park Elementary as her home base and shared a classroom there with two other teachers. She taught UNF students in classes at the university and worked with new teachers at the school. She estimated that she spent half her time at UNF and half at Grove Park Elementary. Ms. Brown had no K-12 courses or K-12 students assigned to her in 2017-2018. She had no courses assigned to her in FOCUS. She gave grades to only UNF students. Ms. Brown did not create traditional lesson plans but did assist new teachers in writing lesson plans. Ms. Brown testified that she did some teaching in a regular classroom for purposes of modeling teaching techniques for her student teachers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Finding that Petitioners Abbie Andrews, Cherry Deaton, and Donna Foster were not eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were not classroom teachers during the 2017-2018 school year; and Finding that Petitioners Easter Brown and Danielle Perricelli were eligible for a $1,200 scholarship under the 2017 Florida Best and Brightest Teacher Scholarship Program because they were classroom teachers during the 2017-2018 school year, and directing staff to take all practicable measures to secure the scholarship monies for Ms. Brown and Ms. Perricelli. DONE AND ENTERED this 18th day of March, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 2019.
The Issue The issue in this cause is whether the Petitioner Duval County School Board should dismiss the Respondent for professional incompetence pursuant to the Duval County Teacher Tenure Act, Laws of Florida, Chapter 21197 (1941) as amended.
Findings Of Fact The Petitioner is the Duval County School Board. The Respondent, Bobby Palmore, has been an employee of the Petitioner since the 1992-93 school year. The Respondent is a tenured teacher assigned as a guidance counselor. During the 1997-98 school year, the Respondent was a guidance counselor at North Shore Elementary School. The Principal at the school in 1997-98 was Larry Davis. Concerns regarding the Respondent’s work performance at North Shore were raised early in the school year regarding his participation with Intervention Teams. An Intervention Team is formed to assist a guidance counselor with a particular student. The team meets when requested by the guidance counselor. Notwithstanding that the Intervention Team convened at the Respondent’s request, he missed the meeting scheduled for September 29, 1997. His erratic attendance at other Intervention Team meetings was of concern to the Assistant Principal, Martha Johnson, and the Principal. Ms. Johnson spoke with the Respondent about this, and Mr. Davis wrote the Respondent about his attendance at these meetings. Respondent’s attendance did not improve. The Respondent’s erratic attendance at Intervention Team Meetings was unsatisfactory performance of his duties and showed a lack of understanding of the subject matter. The Respondent repeatedly interrupted classroom teachers with unannounced and unscheduled calls and visits to their classrooms. This disrupted their classes, and they complained to administrators about Respondent’s conduct. These interruptions were frequently to obtain information regarding students who were being staffed for one reason or another, an activity coordinated by the guidance counselor. The Respondent was officially counseled about these interruptions by Ms. Johnson, but continued to interrupt classes and cause disruptions. This was unsatisfactory job performance and showed the Respondent’s failure to follow directions, plan his activities effectively, and manage his time well. These are considerations in Competency 2 of the Evaluation criteria. The Respondent was asked by Ms. Johnson to make a sign to direct parents and others to a December 12, 1997, Child Study Team (CST) meeting. He did not do so. This also showed the Respondent’s inability to follow direction. On January 13, 1998, the Respondent told Deborah Nurse, an employee of the school, in a rude and loud voice, that she was not to use the copying machine that was outside his office. Mr. Davis counseled the Respondent in writing regarding his behavior on January 16, 1998. On January 14, 1998, at a CST meeting, Ms. Slaughter asked the Respondent for a cumulative folder on a student. The Respondent had been asked to the meeting because of his lack of cooperation regarding the folder. The Respondent accused Ms. Slaughter of not respecting him in the meeting, and insisted that she ask him again for the folder. The Respondent’s actions were embarrassing to the professionals present at the meeting and showed a lack of professionalism on the part of the Respondent. He was counseled in writing by Ms. Johnson about his conduct. On January 15, 1998, a meeting was held to discuss a student between Ms. Johnson, Mrs. Shabazz, and the Respondent. Mrs. Shabazz indicated that a pertinent document was missing from the student’s folder that could effect his educational program and result in a loss of funding for the school. It was Respondent’s responsibility to maintain the student’s records in the guidance office. Ms. Johnson counseled the Respondent about his responsibilities in maintaining records and their importance to the school. She offered to assist the Respondent in reviewing the cumulative folders prior to their processing. The Respondent was responsible for preparation of materials for and participation in CST meetings on students. The Respondent placed students on the CST agenda without completing the data in their folder. This failure interfered with the proper and timely placement of students, and evidenced an unsatisfactory performance of a basic part of the Respondent’s job. As a result of the complaints about the Respondent’s work and conduct, a Success Plan was developed. This plan outlined areas in which the Respondent was not performing satisfactorily, identified objectives for improving his performance, and strategies to meet the objectives. A team was created to assist the Respondent including Mr. Davis, Ms. Johnson, the Respondent’s supervisor in guidance services, and the professional development facilitator. The Intervention Team had decided that team members should receive a response from the Respondent within three days. This time limit was incorporated in the Respondent’s Success Plan; however, the Respondent did not submit the CST packets within the time limits. In addition, the Respondent’s tone in speaking with the teachers was such that they complained to Ms. Johnson about the Respondent. Ms. Johnson counseled the Respondent about the lateness of his submittals and his interactions which the teachers. The Respondent did not improve his conduct that directly resulted in student’s needs not being met. The Respondent continued to be late to or to miss meetings and scheduled classroom visits. On February 4, 1998, he was late to a classroom visit. He cancelled a classroom visit he had scheduled. He did not follow the weekly calendar of guidance activities as required in his Success Plan. On February 4, 1998, Mr. Davis met with the Respondent to discuss the proper procedures for conducting a CST meeting as a means of assisting the Respondent. On February 6, 1998, Mr. Davis counseled the Respondent about his continued interruption of classes, and the Respondent forgot about a scheduled guidance session and did not attend, until reminded by Ms. Dennis. On February 6, 1998, Ms. Anderson met with the Respondent to discuss the guidance program and to offer assistance to him. She suggested that he use a weekly, hour-by- hour calendar to plan his time and activities. She also counseled with him about using a lesson plan for a small group session to provide a clearly defined objective for the session. Ms. Anderson directed the Respondent to follow-up with her in a week. The Respondent did not follow-up with Ms. Anderson or follow any of her advice. On February 9, 1998, Mr. Davis observed the Respondent conduct a meeting with staff regarding the Florida Writes Test. The Respondent’s conduct of the meeting was unsatisfactory. Issues were left unresolved and staff members were confused about the presentation. Some of the material presented was inconsistent with the information in the manual. Mr. Davis wrote the Respondent about these matters, and referred the Respondent to his Success Plan. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to provide proper parental notification of a CST meeting pursuant to district guidelines. On February 9, 1998, the Respondent failed to make to two-scheduled classroom visitations. On February 10, 1998, the Respondent missed a scheduled classroom visitation. The Respondent was not following a weekly calendar of activities, and his performance was unsatisfactory and contrary to the Success Plan. On February 10, 1998, the Respondent attempted to counsel the wrong child about the death of the child’s mother, and was prevented from doing so by the teacher. This reflected poorly on the Respondent’s attention to his duties, and his professionalism. On February 10, 1998, the Respondent was provided a list of counselors at other schools who had agreed to let the Respondent attend classroom guidance or CST meetings at their schools. The Respondent was late and showed a lack of interest while attending a classroom guidance session at Lake Forrest. On February 11, 1998, Mr. Davis observed a CST meeting at North Shore. It was evident that the parents had not received the required seven days' notice of the meeting. The Respondent had not conducted the pre-conferences, and had not coordinated the scheduling with the teachers. The Respondent did not have the proper forms in the cumulative folders, and had not conducted any classroom observations in preparation for the CST meeting. In sum, the Respondent’s performance showed a complete lack of competence and knowledge of his duties as a guidance counselor. On February 11, 1998, the Respondent missed his scheduled classroom guidance visit. On February 12, 1998, the Respondent missed his scheduled classroom guidance visit because he was late in arriving. On February 12, 1998, The Respondent discovered a coding error on the Florida Writes Test. He reported the error to Mr. Davis and accused the teacher of coding the test incorrectly. Davis directed the Respondent to correct the mistake and notify the testing department regarding the possible problem. The Respondent did not correct the test as directed, but placed a note on the box and resealed it to be mailed. The Respondent’s actions violated the testing procedures, and he did not do as he had been directed. On February 17, 1998, Ms. Johnson counseled with the Respondent concerning his failure to respond to student and staff needs. She advised him he was not meeting his Success Plan goals, and students were not receiving services they needed. The Respondent refused to counsel with a developmentally disabled student who had been sent to guidance by his teacher. The proper paper work had been completed for the student to participate in the group counseling session; however, the Respondent refused to allow the student to participate, chasing the student around the room telling him to "get out." The student was confused and embarrassed. Ms. Johnson, who was observing the session, and took charge of the student by having him sit with her, resolved the situation. The Respondent's actions demonstrated a complete lack of understanding of the role of a guidance counselor, sensitivity for students, and ability to conduct a class or counseling session. On March 9, 1998, Mr. Davis completed the Respondent’s Annual Performance Evaluation. The evaluation consisted of eight competency areas. The Respondent received an unsatisfactory rating in three of the competency areas, which constituted an overall unsatisfactory evaluation. The facts as presented at hearing confirm the evaluation, and show that the Respondent was clearly incapable of performing his job duties. He lacked knowledge of his duties or how to perform them. He was insensitive to the students' needs and did not meet them. He did not follow the direction of his Principal and did not maintain a professional relationship with his coworkers and superiors. After receiving this evaluation, the Respondent continued in the same pattern of behaviors. He did not prepare and use a calendar of activities. He continued to provide materials late. He refused to assist a parent obtain the proper papers to enable the parent’s child to enroll in another school. He continued to disturb classes. He failed to notify staff of CST meetings at which they needed to attend. He took seven months to complete the paper work to have one child tested. In fact, there were several students who were awaiting CST processing at the end of the year. The Respondent was treated fairly and provided assistance by the school’s administration. Based upon his unsatisfactory evaluation in 1997-98, the Respondent was administratively transferred to J.E.B. Stuart Middle School the following year for an additional year of observation of in-service training. Carol Daniels is the Principal of Stuart Middle School. She met with the Respondent and advised him that he was starting with a clean slate at her school. School Board Policy required that Ms. Daniels confer privately with the Respondent and develop a Success Plan. She met with the Respondent on August 24, 1998. The Success Plan outlined goals and objectives to improve the Respondent’s performance as a guidance counselor. A support team was created to assist him. Soon after the school year began, Ms. Daniels counseled the Respondent about the proper method to request student records. She arranged for him to attend New Counselor Training on or about August 31, 1998. The Respondent was negative and adversarial about being requested to attend the training. He officially complained about the request, but upon review the Regional Superintendent determined that Ms. Daniels’ request was not arbitrary and was appropriate. The Respondent was counseled by Mr. Gilmore, the Vice Principal, on the need to process gifted students under the ESE program. He had failed to process several of these students, and he was given a deadline for processing these students. On September 8, 1998, the Respondent did not exit the building during a fire drill. Ms. Daniels counseled him in writing about the need for everyone to evacuate the building during drills. Mr. Gilmore counseled in writing the Respondent about the lack of lead-time in requesting information about students, and his abruptness and tone in making requests. On October 26, 1998, Linda Bailey requested an ESE/CST Agenda from the Respondent. The Respondent replied he was too busy to provide the information. On October 28, 1998, Ms. Bailey again asked for the information in writing. The Respondent did not provide the information. On October 26, 1998, Ms. Bailey also requested progress reports for the ESE students who would be reevaluated on November 9, 1998. These reports had been used at Stuart Middle School for many years as a best practice strategy. The Respondent advised that he had no intent of providing the progress reports and refused to do so. On October 26, 1998, the Respondent accused the District ESN Admissions Representative of taking ESE forms from his office. His tone and manner were threatening and confrontational. On October 27, 1998, Ms. Daniels notified the Respondent that he would have an evaluation and conference on October 30, 1998, pursuant to district guidelines. On October 28, 1998, Charlotte Robbins, ESE Interventionist, met with the Respondent to discuss three students. It was the Respondent’s responsibility to provide information to Ms. Robbins in a timely manner. The Respondent did not provide Ms. Robbins the necessary information prior to the meeting. The Respondent also invited parents to the meeting without advising Ms. Robbins. On November 2, 1998, Norma Peters, a speech therapist, advised Ms. Daniels that she had requested the Respondent to provide her a list of students to be evaluated two to three weeks before CST meetings. The Respondent told Ms. Peters he would not be able to provide the information as requested, although previous guidance counselors had provided Ms. Peters the names three to four weeks in advance of meetings. Although Ms. Daniels spoke with the Respondent about Ms. Peter’s concern, the Respondent did not provide the information as requested. On November 5, 1998, the two eighth grade counselors met with the Respondent to discuss the need for him to be a team member. They raised the fact that he did not answer the phone, assist parents, or help the guidance clerk when necessary. They also advised him to improve his communication with the ESE teachers, CST members, speech pathologist, and interventionist. A CST meeting was held on November 9, 1998, and only half the parents had been noticed and invited to come to the meeting. The Respondent had been responsible for contacting the parents in compliance with district policies. This failure prevented the CST team from addressing the needs of students. Not only did it potentially deny students services, it frustrated teachers, staff, and parents. On November 24, 1998, the Respondent interrupted class instruction by bringing a parent into the class who had missed an earlier appointment with the teacher. On November 25, 1998, Kathee Cook telephoned the Respondent regarding contacting children for the December 9, 1998, CST meeting. The Respondent refused to contact the parents of the students because ESE procedures required that Ms. Cook contact him seven days prior to the designated date. Ms. Cook reported this to Ms. Daniels, who discussed it with the Respondent, explaining that the requirement was for at least seven days notice. Ms. Daniels advised him that he was responsible for notifying parents for CST meetings, and his position potentially jeopardized notice to the parents as required by district policy. Ms. Daniels directed the Respondent to give the Vice Principal all of the parental notices by December 2, 1998. On December 2, 1998, the Respondent gave Mr. Gilmore ten notice letters; however, he did not provide notices to eleven other parents. The Respondent excused his failure by asserting his interpretation of the seven-day rule. On November 25, 1998, Ms. Daniels advised the Respondent that he had made little improvement in his performance. She discussed with him performance of his duties; and being courteous and respectful to faculty, staff, and parents. The Respondent did not accept the evaluation and was confrontational and adversarial with Ms. Daniels. He refused Ms. Daniels' offer of assistance. On or about January 5, 1999, the Respondent placed seven notice letters to parents in Mr. Gilmore’s box for the January 11, 1999, CST meeting. Not only were the letters late, if intended for the January 11th meeting, but they were addressed to the parents of children being staffed in the January 22, 1999, meeting. The Respondent failed to discontinue ESE services to a student contrary to the parent’s request on three separate occasions, to include at least one request in writing. The Respondent’s failure resulted in the matter being re-assigned to the chair of the guidance department to discontinue the services in accordance with the parent’s wishes. The Respondent left the campus without following the procedures for leaving early. These requirements had been explained during orientation and were in the teachers’ handbook. Ms. Daniels had to notify the Respondent in writing of his oversight. On January 25, 1999, Ms. Daniels notified the Respondent pursuant to the collective bargaining that his work performance was unsatisfactory. He was advised that his performance in Competencies 1, 2, 4, 8 and 9 needed improvement by March 15, 1999. On February 2, 1999, the Respondent was notified that this memorandum would be placed in his personnel file. The Respondent met with parents who were not enrolled in Stuart Middle School during the middle of the school day. Ms. Daniels advised him in writing on February 11, 1999, that this was inappropriate, and he should limit meeting to parents or students enrolled or engaged in enrolling at Stuart. On March 10, 1999, the Respondent made a presentation to an ESE class. His Success Plan required him to schedule presentations during Advisor/Advisee time period. The Respondent’s presentation was arbitrary and he did not seek assistance from his support team. On March 11, 1999, Ms. Daniels completed the Respondent’s annual evaluation. The evaluation addressed nine competency areas. Th Respondent received an unsatisfactory in five of the nine areas, which constituted an overall unsatisfactory evaluation. The Respondent’s performance in Competency 1 (ability to plan and deliver instruction), Competency 2 (demonstrates knowledge of subject matter), Competency 4 (shows sensitivity to student needs by maintaining a positive school climate), Competency 8 (demonstrates a commitment to professional growth), and Competency 9 (shows evidence of professional characteristics) was unsatisfactory. Not only was his performance unsatisfactory, he continued to be unwilling to accept support and assistance. He failed to comply with many areas of his Success Plan and failed to perform his duties. On March 17, 1999, the Respondent interrupted Mrs. Bascombe’s class. Ms. Daniels counseled the Respondent in writing about class interruptions, and how to handle situations by checking the master schedule and placing notices in teacher mailboxes. On March 23, 1999, Ms. Daniels relieved the Respondent of his responsibilities for ESE students because of his poor performance and its impact on the students' welfare. He had failed to timely notify parents. He had failed to communicate with parents, the staff, faculty and the district. His failures had adversely affected the operations of the ESE program. The Respondent was assigned to handle seventh grade non-exceptional education students. Ms. Daniels had to direct the Respondent in writing to relinquish the ESE forms to his successor. On April 20, 1999, after being relieved of his ESE duties, he met with the mother of an ESE student who was then receiving services from his successor. The Respondent was treated fairly at Stuart Middle School. All of the personnel were ready and willing to provide him assistance. He was negative, and refused to co-operate or perform his duties as directed. On May 19, 1999, the Respondent was notified by the Superintendent that he was charged with professional incompetence. He was advised that he would be discharged from the Duval County School System if the charge was sustained by the School Board. He was advised of his right to request a hearing within two days of receipt of the letter dated May 19, 1999. On June 15, 1999, Ms. Daniels provided John Heavner, Director of Professional Standards, written notice that the Respondent had not completed the requirements of his Success Plan. The Respondent requested a formal hearing by letter on July 10, 1999. Notwithstanding that this was late, he was afforded a hearing. On August 5, 1999, the Respondent was notified that he would be suspended without pay effective August 12, 1999. The Respondent was advised that the suspension would be considered at the September 7, 1999, regular meeting of the School Board. The Respondent is charged with incompetence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that: A final order be entered denying the Respondent’s disciplinary appeal and demands set forth in his pleadings, and dismissing the Respondent for incompetence. DONE AND ENTERED this 27th day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 27th day of March, 2000. COPIES FURNISHED: Lashanda R. Johnson, Esquire City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Bobby G. Palmore 863 Poydras Lane, West Jacksonville, Florida 32218 John C. Fryer, Jr., Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, Florida 32207-8182 Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 321399-0400
The Issue Whether Respondent should be terminated from her employment with the Miami-Dade County School District.
Findings Of Fact The Petitioner is responsible for the operation and control of all public schools within the Miami-Dade County School District. As such, it is authorized to employ the personnel necessary to instruct the school district's students. At all times material to this case, Respondent was employed by Petitioner as an annual contract teacher at Miami Springs Middle School. Respondent was born in Africa and received college degrees from the Sorbonne University in Paris, France. Respondent holds a bachelor's degree in American Literature and Civilization, a master of arts degree in English Literature, a master of arts in International Relations, and a doctorate in American Civilization and Third World Literature. Prior to emigrating to the United States in 1989, Respondent had approximately three years of teaching experience. She taught secondary students for one year in England and France, and for an unknown time in the English Department at Cheikh Anta Diop University in West Africa. After coming to the United States, Respondent taught at Michigan State University for one semester, then at Vassar for one year, at Miami-Dade Community College during a two-year span, at Nova University for one semester, at Jones College in 1994, and at the Florida International University in 1995. In these instances, Respondent's teaching experience was limited to college-age students. Additionally, the number of terms or courses taught in the various settings is unknown. Respondent is certified by the Florida Department of Education in language arts. Pursuant to this certification she may teach middle school students. Respondent began her career with Petitioner as a substitute teacher. Respondent was hired for a full-time teaching position at Miami Springs Middle School for the 1996/97 school year. The transition from college-age students to middle school students proved difficult for Respondent. The students' lack of respect, discipline, and interest in education were new to Respondent. During her first year at Miami Springs, Respondent was assigned a "peer teacher." This individual, Caridad Hildago, was to assist Respondent to overcome beginning teacher problems. In this regard, over the course of the year Ms. Hildago gave Respondent numerous suggestions to help her keep students on task, to maintain control, and to promote interaction between teacher and students in the class. Although she received an acceptable evaluation for this first year at Miami Springs, Respondent exhibited problems with student management. Security monitors were sent to Respondent's classroom on more than one occasion. Nevertheless, because she made progress in the first year, Respondent was expected to become an adequate teacher and was retained for the 1997/98 school year. During Respondent's second year at Miami Springs, the 1997/1998 school year, Dr. Senita became the principal. In October 1997, Dr. Senita informally met with Respondent and told her that students had complained that Respondent had pushed them or handled them roughly. Dr. Senita reminded Respondent that such behavior was not appropriate and that she should keep her hands off the students. Teachers employed by the School Board are evaluated pursuant to the Teacher Assessment and Development System (TADS). TADS has been approved by the Florida Department of Education and is incorporated into the labor contract between Petitioner and the United Teachers of Dade (UTD). At all times material to this case, TADS was employed to evaluate Respondent's performance. The same TADS documents are used for all grade levels, subject areas, and all teachers. TADS objectively measures 68 minimal behaviors necessary for teaching. TADS' observers are trained and certified. The observer records deficiencies which are observed during the observation period and provides a prescription (a plan) for performance improvement when needed. During the 1997 legislative session, the Florida Legislature amended Chapter 231, Florida Statutes, effective July 1, 1997, to provide for a 90-calendar-day performance probation for annual and professional service contract teachers who are observed to have unsatisfactory performance. Because the statutory amendment impacted how TADS would be used in the future, Petitioner and the union began collective bargaining to revise performance review procedures. In the midst of these negotiations, on October 1, 1997, Respondent was formally observed in her 4th period creative writing class by Mr. Scriven, assistant principal. She was rated unsatisfactory in classroom management and techniques of instruction. Respondent was unsatisfactory in classroom management because the students were off task throughout the lesson and Respondent did nothing to redirect them. Two students had their heads down and/or slept during the class. By Mr. Scriven's count, ten students never participated. Additionally, Respondent was rated unsatisfactory in techniques of instruction because during sustained silent reading, Respondent continually interrupted the students. Respondent also failed to give instructions prior to beginning the lesson. Respondent did not make adjustments when the students' performance warranted it. When students did not understand the assignment, Respondent did not clarify areas of confusion by giving examples or re-explaining. During the post observation conference with Respondent on October 6, 1997, Mr. Scriven made recommendations to correct the areas of unsatisfactory performance, and provided assistance to help Respondent understand the deficiencies. Suggestions included observing a lesson taught by a fellow teacher and listing the non-verbal techniques used by that teacher to redirect off task learners. Mr. Scriven also directed Respondent to read specific pages from the TADS prescription manual and to complete the activities. Respondent was directed to list areas where she would expect student confusion and to discuss strategies with another teacher to address that confusion. On November 25, 1997, Respondent was formally observed in her 5th period creative writing class by Dr. Senita. Respondent had no lesson plan and her performance was marginal. Normally, the absence of a lesson plan would automatically render the observation unsatisfactory. The union asked Dr. Senita to work with Respondent while the Respondent attempted a transfer. To accommodate this request, Respondent was rated satisfactory. On December 5, 1997, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unsatisfactory in knowledge of subject matter and classroom management. Respondent was rated unsatisfactory in knowledge of subject matter because the sequence of information she presented was illogical and she failed to include important dimensions in her instruction. Respondent was rated unsatisfactory in classroom management because there was too much wasted time with no instruction. Additionally, off-task students were not redirected. One student colored with markers for twenty-five minutes and then began bouncing a ball. Some students participated in a conversation about a sports figure and others talked about a girl's boyfriend. Many students chewed gum. Respondent failed to redirect any of these students. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included observing a lesson taught by a fellow teacher and noting the strategies that teacher used to deal with students who were interacting inappropriately. Respondent was also directed to list three topics and to outline their components to ensure that the sequence would be logical. She was to list the important dimensions of each and state how they would be incorporated into the lesson. She was to estimate the amount of time each activity would take. She was to review her lesson plan with the principal. On December 10, 1997, Dr. Senita held a conference for the record with Respondent to address her unsatisfactory performance, to provide recommendations to improve the specific areas of her unsatisfactory performance, and to discuss her future employment status with the school district. Respondent was placed on a Performance Probation in accordance with Section 231.29(3)(d), Florida Statutes, and was provided assistance to help her correct her deficiencies within the prescribed time frame. Meanwhile, bargaining on the changes to TADS between the School Board and the Union culminated in a Memorandum of Understanding which was executed by the parties on December 9, 1997. On January 20, 1998, Respondent was formally observed in her 5th period creative writing class by Ms. Bell, assistant principal, and was rated unsatisfactory in classroom management and techniques of instruction. Respondent was rated unsatisfactory in classroom management because her instructional activities did not fill the allotted time. Again, there was wasted time. There were instances of prolonged off-task behavior which Respondent did not address. Respondent was unable to keep students quiet. Ms. Bell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance to help Respondent correct her deficiencies. These included having Respondent observe a demonstration lesson in the same class. Ms. Bell also prescribed activities from the TADS prescription manual. On January 28, 1998, pursuant to Respondent's prescription, Ethel Dickens, a reading specialist with Petitioner's language arts department, presented a demonstration lesson utilizing the reciprocal teaching method to teach The Red Badge of Courage in Respondent's class. Respondent was already familiar with the technique of reciprocal teaching because she had learned it in a workshop during the summer of 1997. Prior to the start of the class, Ms. Dickens attempted to meet with Dr. Senita and Respondent. Because Respondent would not meet with Dr. Senita, Ms. Dickens met with Respondent in the teacher's lounge. At the start of the class, Ms. Dickens observed Respondent handling her class for about 15 minutes. The students did not appear to have a routine. Lack of routine constitutes poor classroom management. In contrast, Ms. Dickens began her instruction with class rules. Ms. Dickens introduced the students to unfamiliar vocabulary prior to reading the book. The lesson was very productive. Ms. Dickens had no discipline problems while she taught the class. On March 2, 1998, Respondent was formally observed in her 4th period creative writing class by Dr. Senita and was rated unacceptable in preparation and planning and classroom management. Respondent was rated unsatisfactory in preparation and planning because she had no lesson plan. Respondent's class was in the library and Respondent requested that the principal not observe her in the library. Dr. Senita requested Respondent's lesson plan but Respondent refused to give one to her. The lesson plan is a contractual requirement. It guides what goes on in the class for the day. Respondent was required to allow Dr. Senita to review the lesson plan. An administrator has the right to observe any class at any time. Respondent was rated unacceptable in classroom management because she did not start her lesson for twenty-five minutes while she was on the telephone attempting to call different people to have the principal not observe her. Students reported late to class. Some students chewed gum. One student yelled an obscenity and another barked like a dog. Respondent did not correct the misbehavior. Dr. Senita made recommendations with respect to the specific areas of unsatisfactory performance, and provided assistance to help Respondent correct her deficiencies. These included completing activities from the TADS prescription manual and reading portions of a book entitled Learning to Teach. Respondent was also required to submit her lesson plans on the Friday prior to the week she would teach from them. On March 25, 1998, Dr. Senita formally observed Respondent in her 2nd period creative writing class and rated her unsatisfactory in preparation and planning, classroom management, and techniques of instruction. As this was the confirmatory observation, a prescription was not issued. The lesson was disjointed and did not extend for the allotted time. The students were again off task. As a result of the observation on March 25, 1998, Dr. Senita notified the Superintendent of Schools that Respondent had not satisfactorily corrected her performance deficiencies during the Performance Probation and recommended that Respondent's employment be terminated. The assistance provided to Respondent through her prescriptions was appropriate to remedy her deficiencies. Respondent completed all of her prescriptions. Nevertheless, Respondent continued to fail to plan for and manage her students. Respondent failed to improve her performance such that the students' instructional needs were not met. On April 2, 1998, the Superintendent of Schools timely notified Respondent that he was going to recommend that the School Board terminate her employment contract because she had failed to satisfactorily correct her performance deficiencies during her Performance Probation. On April 15, 1998, the School Board acted upon the Superintendent's recommendation and terminated Respondent's employment contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order sustaining the action to terminate Respondent's annual contract. DONE AND ENTERED this 6th day of October, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1998. COPIES FURNISHED: Roger C. Cuevas, Superintendent School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132 Frank T. Brogan, Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Madelyn P. Schere, Esquire School Board of Miami-Dade County, Florida School Board Administration Building 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Leslie A. Meek, Esquire United Teachers of Dade Legal Department 2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
The Issue The issue presented is whether Petitioner should terminate Respondent's professional service contract for his failure to correct his performance deficiencies within his 90-calendar-day probation period.
Findings Of Fact At all times material hereto, Respondent, Jose L. Rojas, has been employed by The School Board of Miami-Dade County, Florida, as a teacher pursuant to a professional service contract. During the 2004-2005 school year, he taught regular sixth-grade math classes at Redland Middle School. Teachers employed by the School Board, including Respondent, are evaluated pursuant to the Professional Assessment and Comprehensive Evaluation System, known as PACES. PACES was collectively bargained with the teachers' union and approved by the Florida Department of Education in 2001 as being in statutory compliance for teacher evaluations in Petitioner's school district. PACES focuses on student learning and teacher professional development, as well as on teaching behaviors. In PACES, there are seven domains: six are to be observed during a classroom observation, and the seventh domain deals with professional responsibilities demonstrated outside the classroom observation. The domains reflect the required statutory competencies of Section 1012.34, Florida Statutes. Each domain has teaching and learning components, and each component has indicators, 44 of which are required to meet standards under PACES. The 44 indicators are fundamental units of observation that are used to make professional judgments about the quality of learning and teaching. They represent the basic level of teaching to be demonstrated by all teachers in Petitioner's school district, i.e., the minimum requirements. They are the objective standards described in the PACES manual. Teachers have PACES manuals and access to the PACES Internet website. The standards are also repeated in any professional improvement plan, known as a PIP. It takes only one unacceptable indicator for a domain to be rated below performance standards. One below-standard domain indicates a teacher's non-compliance with statutorily- required competencies. The Florida Comprehensive Assessment Test (FCAT) measures student performance on the State's objectives for Florida's required curriculum, the Sunshine State Standards. While Petitioner's school district, as a whole, must utilize the FCAT data and indicators of student performance, there is no similar requirement for evaluating teachers by the results of the performance of their students on the FCAT (or other local assessments for subject matters not covered by the FCAT). Individual evaluations of teachers, however, must address student performance. PACES addresses student performance in every domain. What is assessed is whether the teacher is monitoring and gauging student progress in the classroom, making sure that the students are mastering the required curriculum. Teachers are expected to use their students' FCAT scores from the prior year for planning, pursuant to PACES domain I, to meet the students' deficiencies. Redland utilizes FCAT results in this manner. Further, a teacher's teaching strategies and activities are required to address FCAT expectations. At the beginning of the school year, teachers at Redland receive copies of the scope and sequence for what the students are to learn during the school year. The teachers develop the curriculum and timelines for meeting benchmarks to be covered during the school year. PACES domain II, as another example, deals with the teacher's management of the learning environment. If time is not managed and is, instead, wasted, the students' achievement of the Sunshine State Standards will be impacted, which will affect FCAT scores. PACES domain IV, as yet another example, requires teachers to informally assess the students' engagement in learning to assess their performance to ascertain whether the students are mastering the Sunshine State Standards. All of the administrators who were PACES observers in this case have had extensive training in the standards to be observed and evaluated in teacher performance and student learning and are, therefore, authorized to perform PACES observations, which are based upon what the observer objectively observes while in the classroom. The performance probation process in Petitioner's school district, like the PACES teacher evaluation process, was collectively bargained with the teachers' union. The process is as follows: if there is an observation conducted by an administrator that indicates a teacher is performing below standards, it becomes the "initial observation not of record." The administrator meets with the teacher, goes over the observation, makes suggestions for improvement, and notifies the teacher that he or she will be observed again in approximately three weeks. The administrator offers the teacher the assistance of a professional growth team (PGT). Use of a PGT is voluntary on the part of the teacher at this point. The PGT is part of the professional development aspect of PACES. PGTs are composed of experienced peer teachers who are extensively trained in PACES and are authorized to give support and assistance to teachers to improve classroom instruction. The same administrator who conducted the "initial observation not of record" must conduct the next observation, the "kick-off observation," which is the first observation of record in that school year. If this observation reveals below- standards performance, a conference-for-the-record (CFR) is held. A PGT and a PIP are provided to the teacher. The performance probation period begins the day after a PIP is given to the teacher. The teachers' union and Petitioner then mutually agree on the calendar for counting the 90 days. There must be two official observations during the performance probation period. The teacher must meet all 44 required indicators in order to meet performance standards during the teacher's performance probation. If any indicators are below performance standards, PIPs are again given. There are four levels of PIP activities, which are progressively more complex. A "confirmatory observation" takes place after the 90th day to determine whether the teacher has corrected his or her deficiencies. The "confirmatory observation" must be completed within 14 days after the conclusion of the performance probation, and the evaluator must forward a recommendation to the Superintendent of Schools. Within 14 days of receiving the evaluator's recommendation, the Superintendent must notify the teacher whether he will recommend to the school board that the teacher's employment be continued or terminated. It is not sufficient for the teacher to improve on only some of the deficient indicators. It has been the custom and practice under the collective bargaining agreement that remediation occurs only when the teacher meets standards in all of the required indicators. Respondent's initial observation was conducted by Assistant Principal Fahringer on September 23, 2004. Respondent was teaching a class of 20-23 students. Respondent told the students to take out their agenda books which contained their homework. As Respondent went around the classroom checking each student's homework, the remainder of the students just sat and talked, waiting for a lesson to begin. They were not working on math. Out of the two-hour block of class time, the class was off-task about 25 percent of the time. Respondent failed to meet performance standards in components and indicators of domain II, managing the learning environment, and domain IV, enhancing and enabling learning. Pursuant to the agreed-upon procedures, the observation became "not of record." Assistant Principal Fahringer met with Respondent September 28, 2004, went over the evaluation, and explained why Respondent had not met performance standards. Fahringer gave Respondent suggestions for improvement and advised him that she would return to do a follow-up observation. She offered Respondent a PGT, which he accepted. On October 19, 2004, Fahringer performed Respondent's first observation of record, the "kick-off observation." Respondent was giving a lesson on fractions, decimals, and percentages to 32 students using cups of M&Ms and a chart. Respondent told the students to divide into groups of four. There followed much noise and confusion. As Respondent went from group to group, he did not monitor the other seven groups. Students threw M&Ms and paper wads. Respondent did not meet performance standards in components and indicators of domains II and IV. He did not meet standards in domain II because the learning did not begin promptly. After a five-minute delay, another five minutes were wasted while Respondent counted out the M&Ms. Ten minutes wasted at the beginning of the class is a significant amount of time since time spent on-task improves achievement. There were delays in the organizational and teaching/learning activities. When Respondent told the students to divide into groups of four, some students appeared uncertain as to what group they were in and, instead, milled around talking noisily. Some students remained off-task throughout the lesson. Respondent did not address the off-task behavior because he did not appear to even notice it while he focused on one group at a time. Students came to Respondent with their agenda books, "visiting" other students and talking with them on the way. Eight students were distracted, noisy, and off-task, but Respondent failed to redirect them. Respondent's expectations about acceptable behavior had apparently not been made clear to the students. Although he told them to raise their hands and not to talk, they continued to talk noisily to each other for 50 minutes. Respondent failed to effectively monitor the class throughout the lesson. When he was with one group, he did not use management techniques to diffuse the unacceptable off-task behavior of the other groups. The remaining seven groups did not work (no learning took place) while they waited for Respondent to come to them. Respondent did not meet standards in domain IV because he did not introduce the purpose of the lesson. The students were told how to count the M&Ms and complete a chart, but there was no explanation as to what they were to learn. The students did not understand that they were learning the relationship among fractions, decimals, and percentages. Respondent did not give clear and complete directions. He told the students that they were going to "integrate" decimals, percents, and fractions, a meaningless word choice. The directions did not include any explanation of content or integration of mathematical concepts. Respondent did not demonstrate accurate content knowledge. He gave inaccurate and unclear information to the students. He counted the various colored M&Ms and put the numbers on the chart. On the chart, he explained that the decimals--.35, .10, .25, .17, .03, and .71--equal one, when in fact they equal 1.61. Also on the chart, Respondent explained that the percentages--35%, 10%, 25%, 17%, 3%, and 71%--equal 100%, when in fact they equal 161%. The students accepted the inaccurate information. On the line of the chart indicating the fractions, Respondent reduced some of the fractions leaving different denominators, which made the addition of those fractions difficult. On October 29, 2004, Principal DePriest and Assistant Principal Fahringer held a CFR with Respondent to address Respondent's sub-standard performance, his performance probation, recommendations for improving the specific areas of his unsatisfactory performance, and Respondent's future employment status with Petitioner. Respondent's input was sought, and he was formally assigned a PGT. Respondent was given a copy of the summary of the CFR and a PIP on November 1, 2004. The PIP required him to read and summarize pertinent sections from the PACES manual by November 22, 2004. Respondent's performance probation period began November 2, 2004, the day after he received the PIP. He was provided assistance through his PGT and his PIP to help him correct his deficiencies within the prescribed time. Respondent's PGT provided assistance to him throughout his performance probation. Respondent failed to complete his PIP activities by the November 22 deadline. On December 2 he was given another 24 hours to comply, which he did. On November 24, 2004, Respondent was formally observed in his classroom by Principal DePriest. Respondent was presenting a lesson to 19 students, but the classroom was too chaotic for learning to take place. Respondent again did not meet performance standards in domain II. Learning did not begin promptly. Respondent wasted 12 minutes reprimanding students, taking roll, and answering his personal cell phone while the students were not engaged in learning. There were also inefficient delays in organizational and teaching/learning activities. The students went to the board, one by one, to solve math problems. Respondent spent approximately five minutes with each student at the board while the rest of the class became noisy, walked around, or slept. Respondent failed to monitor off-task behavior or the behavior of the entire class. As Respondent focused on the one student at the board, the other students were off-task for up to five minutes at a time throughout the lesson, talking, putting their heads down, tapping their pencils, and making inappropriate comments such as "Can someone choke me?", "Can someone kill me?", and "Can I die now?". One student simply played with her hair for six minutes. Essentially, everyone was talking, and no one was listening to Respondent. Yet, Respondent did nothing to redirect the students. He did not appear to have classroom conduct rules in place. Thus, Respondent failed to make his expectations about behavior clear to the students. He instructed them not to talk without raising their hands. Nevertheless, eight of the students talked out-of-turn for 20 minutes without raising their hands. DePriest met with Respondent on December 2, 2004, to review the observation. DePriest provided assistance through a PIP to help Respondent correct his deficiencies. The PIP required Respondent to observe other teachers and to view PACES vignettes on the PACES Internet website. Respondent was to maintain a log and discuss techniques and strategies with DePriest. Respondent's deadline to complete his PIP was January 6, 2005. On January 10, 2005, Respondent was formally observed by Assistant Principal Janice Farrell. Respondent was presenting a lesson on perimeters and surface areas to 22 students. The lesson was disorganized, and there was an "air of confusion" in the class. Many students were being unruly and exhibiting off-task behavior. Therefore, not much learning was taking place. Respondent still did not meet performance standards in domains II and IV that had been previously identified. He also failed to meet performance standards in components and indicators not identified in the kick-off observation of October 19, 2004, and, therefore, not the subject of Respondent's 90-day performance probation or this Recommended Order. Respondent caused inefficient delays in organizational and teaching/learning activities. The learners were instructed to complete a "bellringer" activity, i.e., an activity that is used at the beginning of the class period to engage the students in learning as soon as they enter the room. Although they were instructed to complete it, eight of the 22 students did not receive a bellringer worksheet. Students were asking for materials and attempting the activity unsuccessfully on their own. Respondent appeared unaware of the problem Respondent failed to monitor off-task behavior and disengagement from learning throughout the lesson. One student continuously called out Respondent's name, louder and louder, for five minutes. Students talked and copied each other's answers. While a student walked around stamping the other students' agenda books, they became off-task. A group of three students at a back table remained off-task throughout the lesson, talking, copying each other's answers, and throwing papers. Respondent did not redirect any of these students until the last five minutes of the class. Respondent failed to monitor the whole class effectively. When he went to the back of the room to address a tardy student without a pass, he turned his back on the other 21 students who changed seats, threw papers at each other, and hit each other with rulers. Respondent did nothing to redirect his students. He failed to make the purpose or importance of the learning tasks clear to the students. He did not give a rationale for the bellringer activity, which consisted of answering questions about perimeters and areas of geometric shapes. He also gave the students inaccurate information. He incorrectly calculated the perimeter of a square as 3+3+3+3=15. DePriest and Farrell met with Respondent to review the observation. Farrell made recommendations with respect to the specific areas of unsatisfactory performance and provided assistance through a PIP to help Respondent correct his deficiencies. Respondent's PIP required him to complete self- assessment activities through the PACES website. He was to watch vignettes provided by the website in order to understand what the PACES indicators required of him. Respondent's deadline to complete his PIP was February 11, 2005. Because Respondent's second observation within the performance probation period was below performance standards, a confirmatory observation was required after the expiration of the 90 days to determine whether Respondent had corrected his deficiencies. Principal DePriest performed that observation on February 22, 2005. On that day, management of the learning environment and classroom discipline were non-existent. Respondent was presenting a lesson on geometric shapes to 18 students. While he did have instructions written on the board, there were still the same kinds of delays seen previously, and the students were still not engaged in learning. Overall, the class environment was chaotic. One-third to one- half of the class was off-task at any given time. The class was completely disorganized; the students were not engaged; the students did not pay any attention to Respondent, and very little learning took place. Each time supplies were distributed, commotion resulted. When colored paper was distributed so that the students could trace the shapes, they got into arguments over the different colors, negotiated the trading of colors, and asked Respondent for different colors. When rulers were passed out, the students were not instructed to use them to draw the geometric shapes. Some had already drawn the shapes freehand. Others were dueling with the rulers. Some tore the shapes, rather than waiting until they received scissors. Respondent again did not meet performance standards in domain II as identified in the kick-off observation. Learning did not begin promptly. Respondent spent 10-11 minutes taking roll and reprimanding tardy students. There were inefficient delays in organizational and teaching/learning activities. Respondent allowed students to talk and distract others. Students were not paying attention. Respondent accepted a phone call and made a phone call during the class. He failed to monitor the off-task behavior caused by the manner in which supplies were distributed and failed to redirect the students, including while they argued about paper, scissors, and rulers. DePriest notified Respondent on February 23, 2005, that Respondent had not satisfactorily corrected noted performance deficiencies during his performance probation period and that DePriest would recommend to the Superintendent of Schools that Respondent's employment be terminated. On that same day, DePriest transmitted such a memorandum. On March 9, the Superintendent notified Respondent that the Superintendent would recommend that the School Board terminate Respondent's employment contract for Respondent's failure to correct his noted performance deficiencies during his performance probation. Petitioner has met all procedural requirements and statutory time frames. The FCAT was administered to Florida students in late- February to early-March, 2005. Petitioner received Respondent's students' scores on May 17 and the district-wide FCAT results on May 19, 2005, the day before the final hearing in this cause. The district as a whole showed "tremendous" progress over the prior year. Even though Redland is a "low-performing" school, it likewise showed progress over the prior year in reading and mathematics. Respondent's students, however, failed to follow this trend. Petitioner does not use a teacher's current students' FCAT scores in assessing a teacher's performance because the scores are released too late in the school year. PACES, however, addresses student performance, as statutorily required. Where a teacher's students are observed as being noisy throughout lessons, being confused, not paying attention, and being given erroneous lesson content, there is a clear lack of student performance, and they are not engaged in learning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent failed to correct his performance deficiencies and terminating Respondent's professional service contract, effective April 13, 2005. DONE AND ENTERED this 29th day of July, 2005, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 29th day of July, 2005. COPIES FURNISHED: Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Rudolph F. Crew, Ed.D, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
Findings Of Fact The Petitioner, Ms. Ann E. MacPherson, is on continuing contract with the Monroe County School District, and has been a teacher for that District for 19 years. She started first as a physical education teacher in elementary school for one year, and next taught physical education for six or seven years in middle school. Subsequently she started having health problems, and on doctor's advice, switched to teaching something other than physical education. She switched to science. She had had no formal education to teach science, except for courses in her physical education degree. However, she is now certified in Science and Physical Education. For the past two years, the Petitioner has taught General Science and Health at Key West High School. In October 1981, Ms. MacPherson injured her foot on sharp glass. She was then a diabetic, and the injury failed to heal properly. Over the next several years, she had surgery nine times in one foot and seven times in the other foot. Her injuries caused her to require lengthy hospitalization and recuperation periods away from the class room. In the school year 1981-82, she was absent 60.5 days, in the year 1982-83, she was absent 74 days and in the year 1983-84 the Petitioner was absent 48 days. The school year is 180 days. During some of her periods of recovery, Ms. MacPherson was able to work in the classroom, but was not able to walk around the classroom due to her foot injuries. On the days that the Petitioner was absent from her classroom, she continued to supervise the work of the teacher substitute from her home. She continued to prepare the lesson plans, correct notebooks, make up the tests, grade tests, and help the substitute teacher through continuing contact. She asked for a substitute teacher by name to help with continuity of instruction. Ms. MacPherson taught Intermediate Science Curriculum Study (ISCS) initially in the middle school for six or seven years, and then at Key West High School since at least 1980, except for one year when she taught Health. The ISCS program placed special emphasis upon individualized learning. Students were expected to select science areas for investigation or experiment from a list prepared by the teacher, and then to progress at their own rate to conduct the investigation or experiment. Continuity of instruction by the same teacher was especially important for the ISCS course. Other teachers who taught the ISCS program were required to take a summer training course, but the Petitioner was not. The Petitioner received some informal training from Ms. Betty Cox, the school district curriculum coordinator. During the time that the Petitioner taught science at the middle school (Horace O'Bryant), she organized and used field trips as an instructional technique. She was unique among other teachers in this respect in the emphasis that she placed upon field trips, and the fact that she used her own car for transportation and paid expenses from her own pocket. Also while she was at Horace O'Bryant Middle School, the Petitioner applied for and obtained several small grants from the Department of Education for teaching environmental education. An administrator of these grants testified that only about one-half of those who apply are successful, and that the Petitioner's projects were very good. By the 1979-1980 school year, the Petitioner had transferred to Key West High School. Almost all of her students, if not all, were not headed for college. Typically these students were probably going to take jobs fishing, as clerks, or waitresses, after leaving high school, and were of average or less than average academic ability. Homer B. Herrick, Jr., was Chairman of the Department of Science at Key West High School for the school years 1979-80 to 1983-84, and in that capacity, was supervisor of the Petitioner. During the first two years, Mr. Herrick observed no significant problems with Petitioner's teaching. Mr. Herrick observed Petitioner in the classroom during these two years. He had routine lesson plan problems with the Petitioner, of a type that all teachers had, and found that the Petitioner was willing to implement his suggestions, and did so. In the school year 1979-80, the Petitioner received a performance evaluation, Petitioner's Exhibit 6. The evaluation was very good. Ms. MacPherson was praised for her extraordinary efforts to enhance her science program by use of field trips and slide/sound track presentations. The annual evaluation stated that she was a "dedicated instructor, who goes all out for her students." She was commended for "many extra hours" she spent to enhance her program, and the evaluation concluded that she "works well with other members of her department." Ms. MacPherson was criticized in two areas: coordination of field trips, and greater use of the guidance staff to control classroom discipline. These, however, were minor observations, as the evaluation concluded that "overall discipline is very good." The evaluation was signed by the Principal of Key West High School, Clarence Phillips, and was prepared by the Assistant Principal, Thomas Roberts. Mr. Roberts could not remember if his evaluation was based upon his own observations, or the combined observations of himself, Department of Science Chairman Herrick, and a Mr. Gallagher. During the school year 1980-81 Principal Phillips assigned Assistant Principal Roberts, Department of Science Chairman Herrick, and District Curriculum Coordinator Betty Towns Cox to conduct a series of classroom observations of the Petitioner to evaluate her teacher skills. The date is established by Petitioner's Exhibit 3, a letter from Alvin Burney, President, United Teachers of Monroe, to the Petitioner dated February 24, 1981. The date of February 1981 as the date of the first intensive observations was corroborated, apparently, by Ms. Cox's log of visits, which indicated she spent 14 hours in that month in the classroom observing the Petitioner with Mr. Roberts and Mr. Herrick. Transcript, p. 75. (The log is not in evidence.) Ms. Cox, however, placed primary emphasis in her testimony upon observations she made in the 1982-83 and 1983-84 school years. The Petitioner placed the observation period in the 1981-82 school year, Mr. Roberts could not remember if it was in the 1980-81 or 1981-82 school year, and Mr. Herrick placed the date of the observations in the 1981-82 school year. The written evidence of the date is better evidence than the conflicting memories of the witnesses. Department Chairman Herrick was one of those requested to conduct these observations. The observations were almost daily, and went on for about two weeks. To Mr. Herrick, discipline in the classroom was the primary problem. The observers were looking for a teaching deficiency as a potential cause of the discipline problem, but Mr. Herrick did not recall any problem with Ms. MacPherson's delivery of instruction. Mr. Herrick testified that after these observations, extensive plans were formulated for improvement, and these plans were discussed with the Petitioner. In the following months, there seemed to be less problem with discipline, and it was his opinion that the Petitioner had incorporated and implemented their suggestions. Assistant Principal Thomas Roberts also observed Ms. MacPherson during this period of intensive observations in the 1980-81 school year. Tee agreed with Mr. Herrick that the primary problem causing the observations was discipline in Petitioner's classroom. Mr. Roberts observed the Petitioner 5 to 8 times over a period of about a month. Each of the observations were for a continuous 2 to 3 hour time each day. He became "extremely concerned" about the lack of discipline maintained by the Petitioner in some of her classes. In the area of teaching, Assistant Principal Roberts was "pleased that she was making a strong effort in terms of not only the field trips and the slide series, but, you know, she was interested in any information that was given her by Mr. Herrick or Mrs. Cox in terms of her planning process, the things teachers need to do. And more importantly, her interaction with children, you know, she was concerned about that." Transcript, p. 135. Assistant Principal Roberts, however, felt that he was not competent to give an opinion as to Petitioner's competence in instruction, that Mr. Herrick and Ms. Cox were assigned at that time to evaluate that area, and that he himself focused primarily on the discipline issue. He concluded that the Petitioner at that time (1980-81) needed more training in classroom discipline skills. One of the causes of disciplinary problems that year was one student who caused many problems in one of the Petitioner's classes. The Petitioner had had the older brother of this student, and both were significant disciplinary problems. Mr. Roberts agreed that the Petitioner had more serious problems in one class in particular. Transcript, pp. 133-34. The Petitioner testified that the administration failed to help her discipline this one student. Transcript, pp. 164-65. However, it is clear from the testimony of Mr. Herrick and Mr. Roberts above that the Petitioner in general had problems disciplining her classes, and the problem was not confined to one student. In late 1980 and early 1981, Alvin Burney was President of the United Teachers of Monroe, and in that capacity he was contacted by Ms. MacPherson with regard to the evaluation process that had been instituted by Principal Phillips. Mr. Burney met with Principal Phillips, and Petitioner's Exhibit 3, a letter from Mr. Burney to Ms. MacPherson, summarizes what Mr. Burney says he heard from Mr. Phillips at that meeting. In the letter to Ms. MacPherson, Mr. Burney listed items which he said he would submit to Principal Phillips as suggestions for resolving these problems. The suggestions in the letter were apparently not implemented by Principal Phillips, except that the suggestion that fewer observations be conducted was implemented. At about the same time, Mr. Burney talked with the Superintendent, and the Superintendent told him that he had a list of teachers that were not, in his opinion, performing to his standards, and that he wanted to look at ways these teachers could be improved or be terminated. The Petitioner was one of these teachers. The Respondent objected to this testimony as hearsay, and lack of foundation: time, who said it, and so forth. The record contains an adequate foundation. Transcript, p. 114. The testimony is the testimony of an agent of the Respondent, and admissible as an exception to the hearsay rule. Section 90.803(18)(d), Fla. Stat. (1984). When the Petitioner testified, she misplaced the period of intensive observations as having occurred in the 1981-82 school year. As discussed above, other more credible evidence establishes the period as February 1981 in the 1980-81 school year. The Petitioner did not mention the problem of discipline in the classroom as a cause for the observations, but emphasized instead what she characterized as a misunderstanding at the beginning of the year as to what was expected of her in teaching the ISCS program that year. She said that at the beginning of the year, there was not enough money to buy equipment for physics, chemistry, and her ISCS course, and that with the knowledge and approval of Mr. Herrick and Ms. Cox, the Petitioner planned to present only one ISCS unit at the beginning of the year, to present more general science instruction, and then to present two ISCS units at the end of the year. But midway through the year, Mr. Phillips called her in and criticized her for not teaching the ISCS units, and started the observations by Herrick, Roberts, and Cox. The Petitioner said that apparently Mr. Phillips had not been told of the plans approved earlier by Cox and Herrick. Ms. MacPherson's position at the hearing was the same as that which she expressed in June 1981 as a response to her 1980-81 evaluation, and is credible. See paragraph A.1., attachment to Petitioner's Exhibit 5. At the end of the school year 1980-81 (May 20, 1981) Petitioner received her annual teacher evaluation, Petitioner's Exhibit 5. The evaluation was signed by Principal Phillips. The evaluation rated the Petitioner acceptable in only 3 categories. In the following categories the Petitioner was rated needs improvement:" preparation and planning, techniques of instruction, teacher-student and parents, and personal qualities. The Petitioner was evaluated as "unacceptable" in classroom management. However, Principal Phillips did not personally observe the Petitioner in the classroom that year, transcript, p. 217, and there is no other testimony in the record to support the conclusions of this annual evaluation, except classroom management, which was improved. Indeed, the testimony of Mr. Herrick and Mr. Roberts lead the Hearing Officer to conclude that Ms. MacPherson responded to the assistance and evaluations that occurred on an intensive basis, and made suitable and adequate improvements. Based upon all of the foregoing, it is the finding of the Hearing Officer that the Petitioner ultimately performed her job adequately for the 1980-81 school year, but that she had had significant disciplinary problems during the school year, which she was able to improve by the end of the year. At the beginning of the next school year (1981-82) following the year in which intensive observations had been conducted, the Petitioner made a special effort to request the assistance of Department Chairman Herrick to develop her lesson plans. The Petitioner wanted to avoid the problems she had had the previous year. In October of 1981, as discussed above, Ms. MacPherson injured her foot, and her serious medical problems began. She was absent 60.5 days during the 1981-82 school year. During the times she was able to attend class that year, her infected feet were open and draining, and standing aggravated her condition. At some time during that school year, Principal Phillips suggested that Ms. MacPherson take a medical retirement. Ms. MacPherson again contacted Mr. Burney, and Mr. Burney, on her behalf, wrote a letter dated February 22, 1982, to Mr. Phillips. It was Mr. Burney's position at that time that in his conversations with Mr. Phillips the year before, Mr. Phillips had agreed to "make arrangements during pre-planning of this school term to outline detailed expectations" for the Petitioner, and this was not done. The letter further stated, on behalf of the Petitioner, that it was the Petitioner's contention that since no more observations had been scheduled, the deficiencies complained of in the previous year had been corrected. At the end of the 1981-82 school year, the Petitioner again received her annual evaluation signed by Mr. Phillips. Mr. Phillips did not personally observe the Petitioner, and the record does not contain any other competent evidence, either pro or con, concerning Ms. MacPherson's performance that year. Neither Mr. Herrick or Mr. Phillips testified specifically about her performance that year, and Ms. Cox's testimony cannot be adequately dated as pertaining to that year. The 1981-82 annual evaluation rated the Petitioner "acceptable" in the following area in which she had been rated "needs improvement" the year before: preparation and planning, professional responsibility, and relationship with staff and parents. Her grating in classroom management, which had been unacceptable in 1980-81, was rated acceptable. Ms. MacPherson was rated "needs improvement" in techniques of instruction and teacher-student relationship, which was the same rating in these categories as the prior year, and was rated unacceptable in personal qualities. Mr. Phillips commented in the evaluation that "although she says she wants to teach, I feel that her physical health is of an extremely serious nature and the suggestion of medical retirement should be reinvestigated." Respondent's Exhibit 1. The Petitioner attached a general rebuttal to the evaluation, simply disagreeing with critical ratings therein. It is the finding of the Hearing Officer from the foregoing that the Petitioner performed her duties adequately during the 1981-82 school year, except that her injuries caused her to miss a substantial number of classroom days, and her performance was impaired by her injuries. During the 1982-83 school year, as discussed above, Ms. MacPherson continued to have serious health problems with her feet. She was absent from school 74 days. In November 1982, she wrote to her Principal to try to schedule surgery and arrange for a permanent substitute so that the substitute, who she suggested by name in her letter, would provide some continuity of instruction for the students in the ISCS program. In preparation for this lengthy absence, Ms. MacPherson set up all the teaching units and day by day lesson plans for her substitute to follow, and prepared instructions for finding the equipment, how to use it, and how to monitor student use. She went over these plans with the substitutes assigned to her. But her hospitalization continued for longer than planned, and during this period she continued to make lesson plans at the hospital, to correct all the tests, correct notebooks, average grades, have frequent discussions of teaching with the substitute, and do the work she could do in the hospital or at hone. All of this work she did without pay because she was then on leave with pay, having exhausted her sick leave. During both the 1982-83 and 1983-84 school years, Ms. Cox, the school district curriculum coordinator, at the request of Principal Phillips, worked with the Petitioner on her lesson plans on a number of occasions. Ms. Cox also observed the Petitioner's performance in the classroom. Ms. Cox estimated that her observation periods lasted from as short as ten minutes to as long as a full hour, and that during the 1982-83 school year, she visited Petitioner's classroom about six times per month. Petitioner's counsel attempted to impeach Ms. Cox's testimony by cross-examination from logs prepared by Ms. Cox which recorded classroom visits she had made. The resulting record does not impeach the evidence provided by Ms. Cox. Much of the transcript simply consists of counsel's characterization of the logs, not testimony of a witness, and the logs were not offered into evidence. Further, it appears that the logs covered the period from 1980 to June 25, 1982, which is a period largely irrelevant to Ms. Cox's period of observations. Transcript, pp. 77, 76-77. Ms. MacPherson testified that the only times she remembered being observed by Ms. Cox was in 1976 and "when Mr. Phillips asked her to on that extensive evaluation." Transcript, p. 161. Ms. MacPherson placed the period of intensive observations, at the request of Principal Phillips, as the school year 1981-82. Transcript, pp. 173-75. At other times, the Petitioner testified that Ms. Cox did not stay in the classroom to observe her, but only beckoned her to come to the door, or visited in some other way so as to not disrupt the class. With respect to lesson plans, Ms. Cox's testimony did not disparage the Petitioner. Ms. Cox testified that she worked on lesson plans with the Petitioner, and that the end result contained some of her suggestions and some of the Petitioner's. Transcript, p. 42. The Hearing Officer concludes from this testimony that the Petitioner functioned adequately in collaboration with Ms. Cox on lesson plans, and had a good attitude in the process. Ms. Cox criticized the Petitioner in the classroom for failing to be "up and moving around, acting as a facilitator . . ." and testified that as a result, she observed a number of students not doing science. Transcript, p. 43. From this Ms. Cox stated her opinion that since the State now requires 72 hours of laboratory cork in science class, that "it would be very, very difficulty for a teacher as inactive as Ms. MacPherson to do seventy-two hours of lab work." Transcript, p. 45-46. In the same vein, she testified that the Petitioner would need a "tremendous" amount of training to be effective in the new science program. Transcript, p. 57. On cross-examination, Ms. Cox was asked specifically to state the factual predicated for her opinion. In addition to the question of moving about the room, Ms. Cox mentioned "facilitating" and "delivery of instructions." Transcript, p. 59. Ms. Cox defined "facilitating" to mean moving around the classroom, observing and instructing, so that concept was simply a short-hand way of combining the concept of motion, observation band delivery. Transcript, p. 59. Ms. Cox's criticism concerning delivery of instruction was that she said that the Petitioner delivered instructions only once, and that repetition was needed. Transcript, pp. 59-60. But when asked whether she had had enough day to day observation of the Petitioner to say "for a fact that her delivery was one shot," Ms. Cox admitted "no, I did not observe that frequently, but we talked about it." Transcript, p. 60. When asked to say whether she talked about it frequently, Ms. Cox testified: "I don't know if I said several occasions, or that we talked about it." Id. Thus, Ms. Cox did not have a sufficient basis upon which to concluded that Ms. MacPherson had any problems with delivery of instructions. With regard to the problem observed of students not on task, and Ms. MacPherson's failure to move around the room, Ms. Cox's opinion was not reliable for two reasons. First, she denied that average and less than average students would be expected to be less on task in an individually motivated science program than above average students. Transcript, p. 66. This is contrary to common sense and indicates that Ms. Cox did not have an adequate appreciation of the problems of teaching a science curriculum that depended substantially upon self-discipline and self-motivation. Further, Ms. Cox was aware that Petitioner's physical mobility in the classroom was significantly impaired due to her foot injuries, transcript, pp. 51-52, but she failed to evaluate how much of the "immobility" and "inactivity" of Ms. MacPherson was due to her feet, and how much may have been due to lack of teaching skills or motivation. Ms. Cox's opinion that Petitioner would have difficulty teaching the new science course because it requires 72 hours of laboratory work also appears not reliable. The ISCS program is no longer in existence at Key West High School, and the Petitioner would be required to teach a more traditional science course having 72 hours of laboratory work. Ms. Cox made no distinction between the ISCS individual laboratory curriculum and the new 72 hour requirement, but that is facially not reasonable. Since the new science program is no longer individualized study, then the 72 hours of laboratory work would also not be individualized. Thus, it would be much easier to teach this laboratory work because all students would probably be involved in the same laboratory experiment during the class period, and would not be able to choose individual experiments. Finally, Ms. Cox significantly limited the usefulness of her opinions by stating that she saw her role as one of assisting the Petitioner only, and not a responsibility for rigorous professional evaluation. She explicitly admitted: "I did not evaluate Ms. MacPherson. . . ." Transcript, pp. 47-48 (E.S.). For these reasons, Ms. Cox's opinions that the Petitioner was an "inactive" teacher, that she had problems with delivery of instruction, that she did not move among the students enough, and that she could not successfully teach the new science curriculum, are rejected as not being based upon sufficiently reliable evidence. On of the reasons given to Ms. Cox for taking steps to help the Petitioner was that parents had complained about the instruction of science by the Petitioner. However, since the complaints mentioned in the record were not complaints made personally to Ms. Cox, such purported complaints are hearsay within hearsay. Transcript, p. 50. As such, no finding can be made that such complaints in fact were actually made. The finding contained in the first sentence of this paragraph, however, can be made. Ms. Cox testified that by being absent sixty days or more in a one hundred eighty day school year, the Petitioner could not have provided her students with a minimum educational experience. Transcript, p. 45. Ms. Cox's opinion explicitly assumed that "the students had to miss a lot of instruction, because a substitute teacher could not just walk in and teach that program." Id. (E.S.). But Ms. Cox's opinion was not based upon an actual evaluation performed by Ms. Cox, but rather was based upon her generalized opinion drawn solely from the absences of Ms. MacPherson. Transcript, p. 56. Ms. Cox admitted that she did not test Ms. MacPherson's students to discover the actual educational level achieved, and that she had no objective criteria for her opinion. Id. Further, there is no evidence that Ms. Cox observed the degree to which Ms. MacPherson had supervised her substitutes, and the quality of instruction provided by the substitutes. For these reasons, Ms. Cox's opinion that Ms. MacPherson failed in fact to provide a minimal educational experience for her students is not sufficiently reliable as a basis for that finding. The fact that Ms. MacPherson candidly admitted that her students would have been better served had she not been absent so much, transcript, pp. 21, 25, does not support the conclusion that she failed to provide a minimal educational experience. At the end of the 1982-83 School year, the Petitioner received her annual evaluation, Respondent's Exhibit 2. She was evaluated as needing improvement in 2 of 8 relevant categories concerning classroom management, was evaluated as needing improvement in 2 of 5 relevant categories in delivery of instruction, needing improvement in the 1 relevant category of assessment techniques, and needing improvement in 6 of 11 relevant categories of professional characteristics. Principal Phillips emphasized the number of absences that Petitioner had had during the school year and her future health in the comments section. The evaluation was signed by Mr. Phillips, but he did not observe the Petitioner in the classroom during that year. At the end of the evaluation, Ms. MacPherson asked to be allowed the opportunity to submit a rebuttal if the criticisms in the evaluation were directed at her teaching skills unassociated with her illness and injuries. That question was not answered by the Respondent, and the Petitioner did not submit further rebuttal. In the pre-planning stages before the beginning of the 1983-84 school year, Ms. MacPherson contacted her Departmental Chairman, Mr. Herrick, and told him that she felt she was on unfirm ground, and that she wanted to be sure that she fulfilled what was expected of her. At that point, Mr. Herrick was no longer making observations of Ms. MacPherson, but he did look over her lesson plans a few times at that time, and he concluded that her lesson plans were satisfactory. Mr. Herrick sought to explain why he was no longer observing and evaluating the performance of the Petitioner at this time by stating that he had "conflicting duties" as a department chairman, wherein he was supposed to help teachers, and he felt it would have been difficult for him to make judgements in a "dismissal type situation." Transcript, p. 145(a). There was no other explanation for Mr. Herrick's departure from his expected normal role as direct supervisor of Ms. MacPherson. It must be concluded from Mr. Herrick's apparent exit from evaluative responsibilities and his excuse that he was too close to the Petitioner to participate in a "dismissal type situation" that by the fall of 1983, a decision had been made to actively pursue evaluation aimed at dismissal of the Petitioner. Nicholas A. Fischer, Director of Human Resources for the Respondent, is responsible in part for professional development and training of teachers, and other duties as assigned by the Superintendent. Dr. Fischer holds a Doctorate in Administration, Planning, and Social Policy from Harvard University. In September 1983, Dr. Fischer was requested by Principal Phillips to observe and evaluate the teaching skills of the Petitioner. Prior to conducting these evaluations, Dr. Fischer had no prior training or knowledge of the curriculum of the ISCS program, and to provide himself with some basis for conducting the evaluations, Dr. Fischer telephoned Dr. William Snyder by telephone. Dr. Snyder is a professor of science education at Florida State University and was one of those involved with writing the ISCS program. From this telephone conversation, Dr. Fischer developed the teaching standard for evaluating the Petitioner. Dr. Fischer conducted his first evaluations on October 13 and 14, 1983. The time spent in observation of the Petitioner was three class periods. Transcript, p. 95. Dr. Fischer was accompanied on at least one of these observation periods by Principal Phillips. At the end of the observations, Dr. Fischer and Principal Phillips prepared the observation form, Respondent's Exhibit 6. Dr. Fischer testified that he observed the Petitioner observing student activity and behavior from the front of the room and by walking around. He criticized her for not discussing with students the tasks on which they were working. At the beginning of the period, the Petitioner told the students to continue on the individual work they had been doing the prior day. Once they completed those tasks, the students were told to begin new work to be chosen by them from a list on the board. After class began, Dr. Fischer noted that the Petitioner failed to discuss the progress of work with individual students, and did not ask students to explain what they were doing, what they intended to do next, and whether they were having problems. Instead, the Petitioner stood in front of the room, or walked around, looking at student work and monitoring behavior, but not orally instructing. Dr. Fischer further testified that the Petitioner did not actively check the students at the beginning for comprehension of her instructions, and did not explain to the students what was expected in their work. Expectations that Petitioner should have communicated to the students included the amount of time to spend on the task, the process to be used to obtain help, and how the students were supposed to work on particular tasks. Dr. Fischer concluded from his observations that the Petitioner did not adequately instruct students at the beginning of the class, and did not adequately instruct student activities during the class. The observation form, Respondent's Exhibit 6, contains additional areas thought by Dr. Fischer to be deficient in Petitioner's teaching. The form mentions a failure to make objectives in lesson plans more specific, activities matched to objectives, and methods of evaluation both made more specific and correlated with objectives and activities. He concluded that it was difficult to determine if lesson plans were followed due to vagueness. In one period, Dr. Fischer observed 50 percent of the students on task 60 percent or less of the time. With regard to behavior of students and professional attitude interacting with students, Dr. Fischer found that the Petitioner needed to be firmer, consistent, and interact in a way that defined what was expected, minimally involving other students. He found that the interactions with students were more confrontations than conversation, and statements were made to the entire class when only the behavior of a few was to be corrected. At the end of the two days in which observations were conducted, Dr. Fischer net with the Petitioner and discussed the contents of his evaluations contained in Petitioner's Exhibit 6. Next, Dr. Fischer developed a professional development plan, which is Respondent's Exhibit 7. The plan follows the topical categories contained in the observation form. The plan sets forth a number of goals to be accomplished by the Petitioner to remedy the matters criticized by Dr. Fischer in the observation form. Dr. Fischer discussed the plan with the Petitioner and scheduled another observation for December 1983. The professional development plan called for daily evaluation of each student's progress. The Petitioner found that daily evaluation was too time consuming and not effective, since students did not make enough progress each day to make evaluation meaningful, and also because there was not enough time each day to both instruct and evaluate each student. Transcript, 185-86. This was corroborated by Respondent's Exhibit 6, which indicates that a class period was about 60 minutes, and Petitioner had 13 students in the third period. While 13 students in a single class is a very small number compared to typical classrooms, it still allows perhaps 10 minutes at the beginning for general instruction and getting out equipment, 10 minutes at the end for equipment storage and summation, and only 180 seconds per student for the remaining 40 minutes in which to monitor behavior, instruct, observe, and evaluate. The Petitioner discussed with Ms. Cox the requirement of daily evaluation, and Ms. Cox told the Petitioner that she agreed that daily evaluation was not possible, but that the Petitioner should try to satisfy "them" (Dr. Fischer and Mr. Phillips) and do it that way for two or three weeks, and then when the period of Scrutiny was over, to go back to doing it the way she had done before. Transcript, pp. 185-86. (As testimony relating that Ms. Cox is fact said these things, the foregoing is not hearsay. To the extent that Ms. Cox's opinion is in the record to corroborate the Petitioner's own opinion that daily evaluation was impossible, it is hearsay, as such, may be relied upon as corroborative of direct evidence on the point). The professional development plan also called for the Petitioner to observe other teachers teaching laboratory science courses in "classes identified by the Principal." Respondent's Exhibit 7, p. 3. Apparently the Petitioner was given the name of one teacher in her own school who taught laboratory science (but not ISCS, since that program had been discontinued), but was not given the names of other teachers in other schools to observe as promised. Further, she was never told when she could be released from her classes to observe these teachers. Transcript, pp. 178-79. Thus, it was impossible for her, on her own, to leave her classes to follow up on these observations. (Dr. Fischer's testimony, which only asserts that "resources" of an identified nature were "suggested" does not contradict Petitioner's testimony. See transcript, p. 100). Other than the matters discussed in the last two paragraphs, the Petitioner was responsible, on her own initiative, to implement all other aspects of the professional development plan. The Petitioner did not ask Dr. Fischer for any help with implementation of the professional development plan, transcript, p. 106, but she did ask for help from Ms. Cox, transcript, p. 187. Dr. Fischer recognized that after a teacher had been evaluated and instructed on areas needing improvement, that the teacher should be afforded a period of time to implement the suggestions. Transcript, pp. 98-99. He estimated that a minimum of a month would be needed to afford a teacher a reasonable period of time to become more specific in plans for instruction, and would need two or three months for some aspects of classroom management. Transcript, p. 99. Other corrections, such as announcing a rule in class, he thought should require only a week to correct, and others, such as stopping fights immediately, should be implemented the next day. Transcript, pp. 98-99. To improve rapport with students, a teacher needed at least two months for implementation. Transcript, p. 99. Applying Dr. Fischer's expectations to the professional development plans, Respondent's Exhibit 7, the development plan consists almost entirely of goals for improvement that would require one to three months to correct. The professional development plan lists goals and objectives stated in broad terms falling within the categories discussed in paragraph 45 above: development of more specific lesson plans, general principles for improving classroom management, and for improving rapport with student. A few of the objectives of the development plan (delivery of instruction, paragraphs 4 and 5, classroom management, paragraphs 1 and 5) would probably be such that it would be reasonable to expect correction and implementation in a few days. But overall the development plan states that implementation of the various sections were to have been accomplished by either December 1, 1983 (five weeks) or January 1, 1984 (nine weeks). At some point between October 26, 1983, when the professional development plan was discussed with and signed by the Petitioner, and December 1983, the Petitioner again became ill due to her feet. The scheduled second observation thus did not occur in December, but occurred on "change-over" day in January, 1984. Change-over day is apparently the day when the second semester begins, and is a day when the skills of a teacher in explaining new material and setting new directions for a class are more extensively tested and required. While it is not a normal teaching day, it is a suitable day to observe a teacher's skills under stress. At the end of the observations that day, Dr. Fischer concluded that the Petitioner had not made significant improvement since his evaluations in October. He felt that some improvement had been made in lesson plans, but still was not satisfied that the plans were sufficiently specific. He gave no examples, however. He said he was still "not clear" on the relationship between the techniques used for evaluating student performance and the objectives for student performance on a given day. And he expressed continued concern for clarity of directions in the classroom and the amount of time students were expected to be on task. Transcript, p. 87. Dr. Fischer's evaluation in January 1984 was based solely upon the observations in the classroom made on that day, and was not based upon observations of or knowledge of the steps that the Petitioner took to improve during the interim. Transcript, p. 88. Dr. Fischer knew that the Petitioner was absent during the period from October 1983 to January 1984, but he did not know the exact number of days of such absence. Transcript, p. 100. Dr. Fischer testified that it would probably not make a difference in his January 1984 evaluation if Ms. MacPherson had been absent due to illness for the majority of the time from the date of the first observations and the beginning of the professional development plan. Transcript, p. 101. In both the October 1983 evaluations and the January 1984 evaluation Dr. Fischer concluded that the Petitioner was not an effective or a competent teacher. Dr. Fischer was of the opinion that he had had an adequate amount of time to observe the Petitioner to develop the above opinion, but that "normally" he would have hoped to have had more time. The students in the Petitioner's ISCS classes were average and below average in skills and intelligence. Ms. Cox did not think that this factor was relevant to her assessment of Petitioner's teaching skills. Dr. Fischer felt Use factor was relevant, and was of the opinion that such students could be taught effectively only by a "highly skilled teacher." Transcript, p. 105. Ms. Cox's failure to consider the skill level of the students in the ISCS science course, with its total emphasis upon learning through self- discipline and self-motivation, severely undermines her credibility as an evaluator of the Petitioner. Dr. Fischer's opinion that only a highly skilled teacher could teach average or below average students in the ISCS science program is accepted as credible. Continuity of teaching by the same teacher is important for proper instruction of students. Unless the teacher is present continuously with the same students, he or she has no adequate way to judge the progress of the student, and from that evaluation of progress, tailor future instruction. Continuity of instruct ion was especially important in the ISCS program because students were not lectured and given the same homework, followed by testing, but progressed at different rates based upon individual choice. With respect to the school years 1981-82, 1982-83, and 1983-84, based solely upon the absences of the Petitioner, it was Dr. Fischer's opinion that the Petitioner could not deliver a minimum educational experience to her students. Transcript, pp. 89-90. Like Ms. Cox, this opinion was not based upon actual testing of students who were taught by Ms. MacPherson in those years, but was based rather upon inferences drawn from the absences themselves, coupled with Dr. Fischer's own expertise. Mr. Herrick also addressed himself to the issue of the Petitioner's absences. He testified that due to the great length of the Petitioner's absences, he had to use several substitutes since there was a rule limiting the time that one substitute could be used. He testified that use of several substitutes resulted in substitutes not always familiar with the materials and student progress, and that he passed by the classroom frequently and could see that the class was "rather chaotic." Transcript, p. 148. Hut Mr. Herrick did not attribute this fact to a lack of skill by Ms. MacPherson: he stated that it would happen to any teacher who had been absent so long. Id. Due to the fact that Dr. Fischer and principal Phillips were faced with a deadline of February 1984 in which to decide whether to recommend to the school board that the Petitioner be returned to annual contract, he and others had to make a decision shortly after the January 1984 observations. Transcript, p. 104. On February 29, 1984, the Superintendent, A. J. Henriquez, wrote to the Petitioner stating that he would recommend to the school board that the Petitioner be returned to annual contract for the school year 1984-1985. Respondent's Exhibit 9. The purpose of returning the Petitioner to annual contract would be to provide her time to improve, and to terminate her if she did not improve. Transcript, p. 107. The Respondent would be legally free to terminate a teacher on annual contract without cause simply by failing to renew the annual contract at the end of one year. In the two previous years, Mr. Phillips wrote to the Petitioner warning that he might recommend that she be returned to annual contract. On April 30, 1982, Mr. Phillips wrote suggesting medical retirement and warning he would recommend return to annual contract if the Petitioner's attendance did not improve. Respondent's Exhibit 4. On March 14, 1983, Mr. Phillips stated that he planned to recommend that Ms. MacPherson be returned to annual contract. Respondent's Exhibit 8. This recommendation, however, was held in abeyance for another year. Respondent's Exhibit 5. In both 1982 and 1983, the basis for the proposed return to annual contract was solely Petitioner's attendance problems, and was not based in upon any claim that the Petitioner lacked teaching skills. In view of the foregoing history of contemplation of return of the Petitioner to annual contract, it is very likely that if the Petitioner is returned to annual contract, her contract will not be renewed at the end of the annual term. Mr. Phillips signed the Petitioner's annual evaluation for the school year 1983-84. The evaluation does not rate the Petitioner unacceptable in any area, but rates her as needing improvement in preparation and planning, classroom management, techniques of instruction, assessment techniques, professional responsibility, school contributions, and personal qualities. The Petitioner was rated acceptable in knowledge of subject matter, teacher-student relationships, and relationships with staff and parents. Evidently due to the fact that no one provided Petitioner with a copy of the evaluation or asked her to sign it, and because the Petitioner was not present at school after school ended that year, the Petitioner did not see the evaluation, and thus it was not then (apparently) discussed with her. Transcript, p. 34. During the 1984-85 school year, the Petitioner took leave of absence without pay to try to heal her feet completely. The last surgery was in October 1984, and since then her feet have been healing well, without flare-up. The Petitioner testified that her feet were now completely healed, and she would be able to walk around a classroom without endangering her feet or her health. She further testified that her doctor felt her feet were healed. Transcript, p. 189. (While this is hearsay, it is corroborative of the Petitioner's own testimony concerning the condition of her own feet, and may be relied upon for that purpose.) The Respondent did not introduce any rebuttal or contradictory evidence as to the current condition of Petitioner's health. The Petitioner will have a lower salary if the Respondent changes her contract from continuing to annual status. The parties have proposed a number of findings of fact, many of which have been considered and are a part of the findings above. The following proposed findings of the parties are considered separately: Finding number 20 proposed by the Petitioner is rejected in part. Mr. Burney's opinion as to the Petitioner's competence as a teacher is rejected for lack of a predicate to show that Mr. Burney had observed the Petitioner as a teacher and had the competence to form such an opinion. To the extent that his opinion was based upon conversations with Mr. Herrick and Mr. Roberts, findings have already been made as to their opinions, and Mr. Burney's reiteration of what they said is cumulative and adds nothing to the record. See also ruling at page 123, transcript. The Petitioner's failure to remember what the initials "ISCS" stood for, which is Respondent's proposed finding 6, is largely irrelevant. That failure might have been relevant had it been the only such event in the record. But since counsel for the school board, Ms. Cox, and Dr. Fischer appear to also disagree as to what the letters mean (compare Respondent's proposed finding 6; transcript, p. 42; and Respondent's Exhibit 7, p. 1), the only finding that could possibly be justified is that there is disagreement among the witnesses who were professionally involved with the administration, evaluation, and delivery of the ISCS curriculum. Finding number 20 proposed by Respondent concerning complaints by parents and students is rejected. No parents or students testified. Neither did Principal Phillips. This is hearsay upon hearsay. Respondent's proposed finding 39 proposes a finding that Ms. Cox rendered an opinion that Petitioner was not providing a minimal educational experience for students "based upon her observations and experience," citing the transcript, page 45. Ms. Cox did not respond based upon her "observations." The question asked was "in light of your experience and background and education." Thus, the opinion, as discussed above, was a generalized opinion based solely upon a stated general number of absences. Ms. Cox was not asked to render an opinion based upon her observations of Ms. MacPherson, and the proposed finding is rejected to that extent. With respect to Respondent's proposed finding 46, Petitioner did testify that most students who missed from sixty to seventy-four days out of a school year of 180 days would not receive a minimum educational experience. The Respondent did not show, however, whether the absence of Ms. MacPherson was the equivalent to total absence of the students themselves for those days, and thus the finding is only of marginal relevance. It has been the intent of the Hearing Officer to explicitly comment upon every proposed finding of fact unless such proposed findings are cumulative, subordinate, or unnecessary. If a finding is immaterial, it is the intent of the Hearing Officer to have explicitly identified such finding as immaterial.
Recommendation For these reasons, it is recommended that a final order be entered that good and sufficient reasons do not exist to return the Petitioner, Ann E. M, to annual contract. DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Thomas W. Young, III, Esquire General Counsel FEA/United 208 West Pensacola Street Tallahassee, Florida 32301 Michael Casey, III, Esquire 2 South Biscayne Boulevard Suite 1800 Miami, Florida 33131 A. J. Henriquez, Ph.D. Superintendent The School Board of Monroe County, 242 White Street P.O. Drawer 1430 Key West, Florida 33040-1430 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue The issue to be determined is whether Respondent is guilty of violating section 1012.795(1)(c) or (g), Florida Statutes (2010), and if so, what penalty should be imposed by the Education Practices Commission.
Findings Of Fact Petitioner is a teacher certified by the State of Florida in the area of elementary education, holding Florida Educator?s Certificate 832516, which expired June 30, 2013. At all times material to the allegations in this case, Respondent was employed by the Duval County School District (DCSD). During the 2009/2010 school year, she taught second grade at Pickett Elementary School (Pickett). Pickett is a “turnaround school,” in which student improvement is crucial. Carolyn Laws was the principal of Pickett from 2007 through 2010, and is currently the principal at Brentwood Elementary School. She has been employed by the Duval County School District for 20 years. Since 2004, she had taken the principals? training course in the use of the Teacher Assessment Tool (TAT) used in Duval County on an annual basis. Ms. Laws has evaluated approximately 50-60 teachers using the TAT. Respondent is among the teachers she evaluated using this method. The TAT contemplates several informal evaluations and at least two formal observations during the school year. The formal observations involve the use of the Teacher Assessment Instrument (TAI). The TAI has a Part A and a Part B. Part A focuses on classroom observation, and Part B focuses on professional development. Part A is then broken down into several categories for observation and evaluation, with specific indicators within each competency. For example, for Competency A (promotes student growth and performance), the indicators listed include: 1) achievement is continuous and appropriate for age, group, subject area and/or student program classification; 2) provides evidence of adequate progress in meeting standards; 3) integrates student performance into lesson plan; 4) uses an objective system of student performance; and 5) shows measurable student gains toward meeting standards. Before the formal evaluation is conducted, the principal and the teacher to be evaluated have a pre-evaluation conference at which they discuss the lesson the teacher intends to present during the observation, and a lesson plan is presented. Thus, the teacher is aware that he or she will be evaluated and when that evaluation will be conducted. On October 13, 2009, Ms. Laws conducted an evaluation of Respondent?s class of 13 students. Respondent had provided a lesson plan in advance. During the evaluation, those areas that were adequately presented were checked on the TAI by the evaluator, and those areas needing improvement were marked with an “n.” Areas that the evaluator did not witness were left blank. Ms. Laws found several areas identified on the TAI to be lacking or in need of improvement. Ms. Laws was concerned that the children in the classroom might not have understood the goals of the lesson, and did not have time to apply the information taught. She was expecting to see a central question, an indication of what was expected, and an anticipated outcome from the lesson. However, Ms. Laws did not witness those things, and the lesson plan provided did not coincide with what was taught that day. Ms. Laws and Ms. Powell met on October 14, 2009, to discuss the observation, and Ms. Laws shared her concerns. Ms. Laws also advised Ms. Powell of the competencies that she needed to make sure she demonstrated in the next observation. A second observation was scheduled for November 16, 2009, a date that Ms. Powell had identified as available. Again, Ms. Laws had several concerns with respect to the observation. For example, there were missing lesson plans, Ms. Powell was not using the required workshop model, the wrong school day was posted on the bulletin board, the lesson included no guided lesson plans, and the lessons schedule needed to be adjusted because the sessions were too long. Ms. Powell also was not using the FAIR (Florida Assessments for Instruction in Reading) data to work with her students in appropriate small groups as she should, so that individual student needs were being met, and was not using the Florida Continuous Improvement Model (FCIM), an assessment tool the school uses every 8-10 days to note student progress. Ms. Laws was concerned as to whether the students in Respondent?s class were receiving appropriate instruction. She also was concerned that lesson plans in the month of October were missing. On or about December 2, 2009, Respondent received a written Notice of Potential Unsatisfactory Evaluation from Ms. Laws, indicating that she had not demonstrated acceptable performance in the following competencies: B (evaluates instructional needs of students); C (plans and delivers effective instruction); D (shows knowledge of subject matter); E (utilizes appropriate classroom management techniques including the ability to maintain appropriate discipline); and H (pursues professional growth). The notice contained an error, as competency “H” should have been competency “A” (Promotes student growth and performance). Ms. Powell refused to sign the notice, the delivery of which was acknowledged by a union representative. As a result of the notice, Ms. Powell was given a success plan to assist her in improving the competencies that Ms. Laws had identified as deficient. Success plan members who were to assist Ms. Powell were Ms. Laws; Katie Atkins, an instructional coach; Mrs. Senior; Mrs. Howard-Hughes; and Mrs. Curry, the union representative. The majority of the support provided for the support plan came from Ms. Laws and Ms. Atkins. Ms. Powell was given the opportunity to provide input with respect to the success plan. A second Notice of Potential Unsatisfactory Evaluation was sent to Ms. Powell on January 8, 2010, and a meeting was held with Ms. Laws, Ms. Powell, and Ms. Powell?s union representative. Ms. Laws sent the second notice because Ms. Powell had been out on sick leave at the end of the semester, and Ms. Laws wanted to make sure she had all of the information that was necessary before beginning the success plan. Ms. Atkins worked extensively with Ms. Powell, observing her in the classroom and providing feedback, as well as modeling lessons for her, and making sure she followed the learning schedule established for her class.1/ According to Ms. Laws, Respondent “worked hard, worked really hard to complete” the success plan; however, completion of the success plan does not necessarily translate to a satisfactory evaluation. The skills developed through the success plan process must transfer to the classroom in order to be effective. In Ms. Powell?s case, those skills did not transfer as hoped. On January 28, 2010, Ms. Laws conducted an informal observation of Ms. Powell in her classroom. During the observation, the mini-lesson reflected in Ms. Powell?s lesson plans was not addressed when she presented the lesson. There was no standard or guided question presented so that the children would understand where the lesson was going or what was expected of them. The lesson plans did not match the learning schedule, the students seemed confused about the assignment, and were not engaged in their work. Ms. Laws discussed the observation with Ms. Powell and gave her some suggestions for improvement. Ms. Powell?s next formal evaluation was conducted on February 5, 2010. Ms. Laws was concerned that the students were revisiting a lesson that had been taught previously, instead of actually presenting a learning experience, especially given that Ms. Powell knew that the formal evaluation would take place that day. Another observation was conducted on February 17, 2010. The lesson was a math lesson addressing use of multiples to reach In Ms. Laws? view, Ms. Powell?s explanation to the children was too long for the lesson. She felt the children needed to have more strategies and did not have clearly identified expectations. She was concerned whether there was any learning taking place in the classroom. A review of the TAI for all of the observations conducted shows that there were several skill areas that were never demonstrated during the observations, despite instructions to improve in these areas or to at least present some aspect of the skill in her teaching. On February 22, 2010, Ms. Laws conducted another formal observation. The concerns expressed were much the same as with previous observations. While Ms. Powell was beginning to use some of the FAIR data, she still needed to meet with her students and make sure they were grouped appropriately. Because she had not already placed her students in appropriate groups, the guided reading was not conducted as it should have been. Ms. Laws conducted another formal observation on February 26, 2010. Again, the lesson taught that day was not reflected in Ms. Powell?s lesson plans. She had grouped her math students and had guided lesson plans provided, so Ms. Laws noted improvement in those areas. One of the things that had been discussed with Ms. Powell was the need to communicate expectations with the students in a student-friendly manner. Instead, Ms. Powell had posted the number of a particular standard on the bulletin board, “MA.2.A.2.1,” instead of a word description of the standard. There was also a wrong answer written on the board that she did not correct. Finally, Ms. Laws conducted another informal evaluation on March 15, 2010. For this observation, Ms. Powell had her standard on the board that indicated what the children were learning. However, her lesson plans were incomplete. The students were supposed to be working with other students on making judgments, and instead, Ms. Powell was telling them what to write down as opposed to having the students come up with their own answers. In addition, the portfolios for the children needed to be organized so that she could keep track of the growth of the children in her classroom. On March 26, 2010, Respondent received her evaluation for the year. She had satisfactory scores for competencies E (utilizes appropriate classroom management techniques, including the ability to maintain appropriate discipline); F (shows sensitivity to students by maintaining a positive classroom environment); G (communicates with parents); H (pursues professional growth); and I (demonstrates professional behaviors). She received a “needs improvement” in competencies B (evaluates the instructional needs of students) and D (shows knowledge of subject matter). For competencies A (promotes student growth and performance) and C (plans and delivers effective instruction), she received an unsatisfactory score. Her overall evaluation was rated as unsatisfactory. When a teacher in the DCSD receives an unsatisfactory evaluation, he or she has the option of staying at the current school or moving to a different school within the district for the following year. Ms. Powell opted to transfer to another school. During the 2010/2011 school year, Respondent was assigned to Merrill Road Elementary School (Merrill Road). Jennifer Gray was the principal at Merrill Road. Ms. Gray worked in the DCSD for eight years, and was a teacher or administrator in Kentucky and Nassau County, Florida, for a combination of 13 years prior to her employment in Duval County. Ms. Gray has been trained in using the Duval County Public Schools Teacher Assessment System each year since 2006. She has performed approximately 150 teacher evaluations using the tool. Ms. Gray and Ms. Powell began at Merrill Road the same year. Ms. Powell was assigned to teach first grade. On September 27, 2010, Ms. Gray held a pre-observation conference with Ms. Powell to go over the lesson Ms. Powell would be teaching during her formal evaluation the next day. The following day Ms. Gray observed Respondent in the classroom and took copious notes on what transpired during her time there. During the observation, the lesson taught did not match the lesson plan. In addition, Ms. Powell used a book walk as a teaching tool. During the book walk, she would ask questions such as, “I wonder who the party is for,” and “I wonder who decorated the table.” While according to Ms. Gray, a book walk is a good model to use, Respondent should have let the children question and wonder as opposed to doing it all herself. Ms. Gray also noted some classroom management issues, felt that the expectations for the students were not clearly defined, and that the students were clearly confused about their assignment. As with Ms. Laws, a checkmark on the TAI means the identified indicator was observed. If an indicator is not checked, it indicates that Ms. Gray did not see it during the observation. Ms. Powell?s TAI for September 28, 2010 had only five indicators checked. Ms. Laws met with Ms. Powell after the observation and shared her specific concerns. On October 5, 2010, Ms. Powell received a Notice of Potential Unsatisfactory Evaluation. The notice advised Ms. Powell that she needed to show acceptable levels of improvement with respect to the following competencies: A (promotes student growth and performance; B (evaluates instructional needs of students); C (plans and delivers effective instruction); E (utilizes appropriate classroom management techniques including the ability to maintain appropriate discipline); and I (demonstrates professional behaviors). A success plan was developed to help Ms. Powell achieve a satisfactory evaluation. Members of the success team were Cynthia Bartley, Janet Heartsill, Michelle Lenhart, and Ronise Collins, as well as Jennifer Gray. Ms. Powell was able to provide input with respect to the success plan. While the success plan was completed, the competencies were not successfully demonstrated in the classroom. Ms. Powell?s next formal observation was to take place on January 27, 2011. She met with Ms. Gray the day before, and discussed what lesson she was going to present. Ms. Powell filled out a Pre-Observation form that Ms. Gray had devised, identifying the lesson to be taught, and certain features related to the lesson. The form had blanks to be completed for the following information: the date and time of the observation; whether the lesson was a new concept or a review; the standard(s) being taught; the connection; the mini-lesson; the active engagement; and what is being shared. It also identified items that the observed teacher should have available for the principal at the time of the evaluation, such as an assessment notebook, lesson plan book, grade book, three writing portfolios and reading logs/response journals, parent communication logs, student conference logs, and other celebrations the teacher would like to share. Ms. Powell indicated that the lesson would be a review. She did not identify the standard being taught, and indicated that the lesson would be about identifying settings for a story, and seeing how the setting helps the reader better understand the story. Ms. Gray felt there was some misalignment between the lesson plan and the lesson. The essential question, which was written on the board, was, “how does thinking about the most important parts of the story help me to understand and be a better reader?” However, the students spent the majority of the lesson simply identifying the setting and never making the connection to how it makes them better readers. In other words, while the students could identify the setting, Ms. Powell did not help them connect the setting to why the setting is important and how it helps them with their reading. Control in the classroom was not consistent, and because minor behavioral issues were not dealt with effectively, the students got off task and were not able complete their work. For example, 20 minutes into the group work, 10 out of 12 students were off task (either finished, never started, playing with crayons, or just sitting there). In short, the lesson became about identifying a setting rather than learning why knowing the setting helps the reader understand the story. Ms. Gray met with Ms. Powell after the lesson and went over her concerns. She told Ms. Powell that the skills she was learning through the success plan need to translate into the classroom. Another formal evaluation was conducted on March 14, 2011. The lesson to be presented dealt with how the attributes of different items affect mass. During the observation, Ms. Gray saw similar issues as in previous observations, with gaps in learning, disorganized lesson plans, and an incomplete presentation. The lesson presented also was completely off of the district learning schedule, and may not have been appropriate for a first-grade class, which is something Ms. Powell should have known. On March 18, 2011, Ms. Powell received her evaluation for the year. She received a satisfactory score for competencies G (communicates with parents) and H (pursues professional growth); a needs improvement score for competencies D (shows knowledge of subject matter), E (utilizes appropriate classroom management techniques), and F (shows sensitivity to students by maintaining a positive classroom environment); and an unsatisfactory score for competencies A (promotes student growth and performance), B (evaluates the instructional needs of students), and C (plans and delivers effective instruction). The overall evaluation was unsatisfactory. On March 24, 2011, Vicki Reynolds, Chief Human Resources Officer for the DCSD, notified Ms. Powell by certified mail that she was receiving a reprimand as Step II discipline pursuant to the DCSD?s Progressive Discipline Plan. The reprimand was based upon a claim that she threw a chair and verbally threatened a student in her class. Respondent admits receiving the reprimand but denies knocking over the chair in anger. Petitioner presented no evidence with respect to the factual basis for the reprimand. On April 12, 2011, Respondent received a second reprimand and three days? suspension without pay as Step III discipline. The reprimand was based on the belief that Ms. Powell had directed two students to “find Mr. D.” and get her cell phone out of her car, resulting in the students roaming the halls before finding Mr. D., Derick Hampton. The only evidence presented at hearing indicates that at the end of a parent conference, Ms. Powell asked if the parent, Tamika Stanley, would walk the children down to the hallway to the custodian, and give Mr. Hampton Ms. Powell?s keys so that something could be retrieved from her car. Ms. Stanley walked with the children down the hall to Mr. Hampton and gave him the keys. The children wanted to go with him to the car, so she waited for them to return. Once they did, Mr. Hampton returned the keys to Ms. Stanley, and Ms. Stanley returned both the keys and the children to Ms. Powell. It does not appear from the only testimony presented that children were ever allowed to roam the halls and they were not left unescorted. On May 10, 2011, Ed Pratt-Dannals, Superintendent of Schools for the DCSD, notified Respondent that her employment would be terminated effective June 14, 2011, as a result of her unsatisfactory evaluations for the school years 2009/2010 and 2010/2011. The letter of termination makes no mention of the two reprimands, but is based only on the two unsatisfactory evaluations. On July 28, 2011, Respondent and the School Board entered into an irrevocable resignation agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding Respondent has violated section 1012.795(1)(c). It is further recommended that, pursuant to section 1012.796(7)(g), Respondent be prohibited from applying for a new certificate for a period of at least three years. DONE AND ENTERED this 12th day of December, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2013.
The Issue The central issue in this cause is whether the Respondent, Jose Antonio Blanco, should be placed in the Dade County School Board's opportunity school program due to his alleged disruptive behavior and failure to adjust to the regular school program.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: During the 1986-87 academic year, Respondent attended Palm Springs Junior High School in Dade County, Florida. Respondent (date of birth: 11-13-72) was enrolled in the seventh grade and was administratively assigned to Jan Mann Opportunity School-North on March 9, 1987, due to his alleged disruptive behavior and failure to adjust to the regular school program. Respondent's grades for the 1986-87 school year, the first grading periods, were as follows: COURSE ACADEMIC EFFORT CONDUCT GRADE Mathematics 1st F 3 F 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Industrial 1st F 3 F Arts 2d F 3 F Education Language 1st F 3 F Arts 2d F 3 F Social 1st F 3 F Studies 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "F" UNSATISFACTORY Respondent did not enroll at the opportunity school and did not attend classes. Instead, Respondent's mother enrolled the student in a private school. His conduct has improved but his grades and academic progress are still below level. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Palm Springs Junior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms, and are used to report behavior problems. During the first two grading periods of the 1986-87 school year, Respondent caused 16 Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's Student Case Management Referral Forms is attached and made a part hereof. Eva Alvarado is a science teacher in whose class Respondent was enrolled. While in Ms. Alvarado's class, Respondent was persistently disruptive. Respondent refused to do homework and in-class assignments. Respondent was unprepared 90 percent of the time and would disturb the class with loud talking. During lectures Respondent would attempt to talk to other students and ignore Ms. Alvarado's instructions. Ms. Alvarado tried to correct the situation by sending notices to Respondent's parents, but little improvement was made. Valdez Murray is a social studies teacher in whose class Respondent was enrolled. While in Mrs. Murray's class Respondent was persistently tardy. Respondent refused to complete homework and in-class assignments. Mrs. Murray contacted Respondent's mother, but the student's work and conduct did not improve. Respondent talked in a loud voice to interrupt class. On one occasion, Respondent walked out of the class without permission and on two other occasions Respondent fell asleep at his desk. Respondent made a practice of talking to others who were trying to do their work, and would laugh at Mrs. Murray's efforts to control the situation. Mrs. Murray would instruct the class to ignore Respondent's noise making activities. Mrs. Alicia Robles is an English teacher in whose class Respondent was enrolled. While in Mrs. Robles' class Respondent refused to perform any work assignments, including in-class oral work. Respondent would instead throw paper darts to the ceiling. Respondent tried to keep other students from working and would interrupt lectures. According to Mrs. Robles, Respondent played with the wires on his braces to create a reason he could be excused from class. Barry Jones is a physical education teacher in whose class Respondent was enrolled. Respondent refused to dress out and participate with the class. Despite Mr. Jones' effort to notify both Respondent and his parents of the problem, no change in conduct or performance was made. Mrs. Blanco acknowledged that her son has a behavior problem, but believes if given another chance his conduct would improve. During the time he has attended private school his conduct has improved tremendously. Although Respondent has not caught up academically, Mrs. Blanco believes he is ready to return to the regular school program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Jan Mann Opportunity School-North. DONE and ORDERED this 8th day of October, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 8th day of October, 1987. SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS DATE INCIDENT DISCIPLINE 10/29/86 disrupting class; parent arguing, talking, conference refusing to work 11/3/86 interrupt class parent refuse to obey conference instruction 11/26/86 tardy, disrupts request be class talking, walking removed changing seats from class- parent contact attempted 12/03/87 tardy, talking to parent contact classmates, showing 3 days out in class in-school suspension 01/13/87 tardy, unprepared 13 days disruptive - noisy, attention defiant parent contact attempted 01/114/87 tardy, refused to additional serve detention detention parent contact 01/15/87 refusal to dress out, 3 days left class area detention without permission 02/014/87 tardy, talks, walks parent contact around disrupting attempted class 02/05/87 refused to do parent contact assignment or test attempted 02/06/87 refused to work, parent contact shouting in class, attempted moving from one seat to another 02/10/87 disrupts class, parent contact running, shouting, unprepared, tardy 02/11/87 tardy, unprepared parent contact for class, failing grades 02/11/87 habitual misbehavior, parent contact lack of respect - refusal to cooperate 02/12/87 refusal to sit in seat; requested threats to other parent to student and teacher get counseling for student 02/25/87 highly disruptive requested during indoor outdoor suspension suspension 02/27/87 disruptive in requested indoor suspension opportunity school APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1453 Rulings on Petitioner's Proposed Findings of Fact: Paragraph 1 is accepted in Findings of Fact paragraphs 1 and 2. Paragraph 2 is accepted in Finding of Fact paragraph 3. The only "D" Respondent received, however, was an exam grade. The grading period was "F." Paragraphs 3 and 4 are accepted in relevant part in Finding of Fact paragraph 6. Paragraph 5 is accepted in relevant part in Finding of Fact paragraph 9 and the Synopsis attached. Paragraphs 6 and 7 are accepted. See Finding of Fact paragraph 7. Paragraph 8 is accepted. See Finding of Fact paragraph 8. Paragraph 9 is rejected as unnecessary, argumentative. Paragraph 10 is accepted. See Finding of Fact paragraph 5 and the Synopsis. Paragraph 11 is accepted. COPIES FURNISHED: Jaime Claudio Bovell, Esquire 370 Minorca Avenue Coral Gables, Florida 3313 Madelyn P. Schere, Esquire Assistant School Board Attorney Board Administration Building 11450 Northeast Second Avenue Miami, Florida 33132 Mrs. Bertha Blanco 14535 West 114 Lane Hialeah, Florida 33012 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 11450 Northeast Second Avenue Miami, Florida 33132
The Issue Whether just cause exists for the Petitioner's proposed non-renewal of the professional services contract under which the Respondent is employed.
Findings Of Fact From school year 1987-88 to school year 1990-91, and at all times material to this case, Respondent Aaron Ellis was employed as a guidance counselor by the School Board of Hendry County pursuant to a professional service contract. The professional services contract under which the Respondent was employed specifically provides that the Respondent may not be dismissed except for just cause as provided in Section 231.36(1)(a), Florida Statutes. Richard K. Shearer has been the Principal at Westside Elementary School since July 1989. At the time Shearer was assigned to Westside, the Respondent was on staff as a guidance counselor, but did not have regular classroom duties and was to respond to referrals from teachers of troubled students. Between August 7 and December 12, 1989, the Respondent placed 44 long distance telephone calls from his school office telephone. The calls, totaling 64.81 in tolls, were not school related. Westside Elementary School's Teacher Handbook specifically provides that long distance calls made from and charged to the school should be school related, and that permission must be obtained prior to such calls being made. On January 23, 1990, Principal Shearer discussed the inappropriate telephone use with the Respondent and informed him that reimbursement was required. Prior to this conversation, the Respondent had made no attempt to reimburse the school for the cost of the calls. By letter of January 26, 1990, Principal Shearer confirmed the conversation and stated that reimbursement was required by February 9, 1990. The letter, a copy of which was placed in the Respondent's personnel file, further states that, "[i]n the future, all long distance calls must be directly related to Westside Elementary school students, and must be logged completely and accurately with specific information as to who was called, what student it was in reference to, and the reason for the call." On April 4, 1990, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. Mr. Shearer discussed the evaluation with the Respondent who refused to sign the evaluation, but instead filed a separate response. Prior to completing the form, Mr. Shearer had observed the Respondent on an informal basis at least three times and had performed one documented formal observation. He also observed the Respondent in casual meetings with numerous students. In the evaluation, Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", "interpersonal relationships", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has some excellent qualities in the way he communicates with students. He also has some glaring weaknesses in making the most effective use of school time, in relating to fellow staff members including those in authority over him, in following generally understood office procedures. Improvement is necessary in these areas during the 1990-91 school years. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were unsatisfactory, the Respondent's employment contract could be non-renewed. Mr. Shearer was concern that the Respondent did not follow through on referrals by teachers of troubled students. He also believed the Respondent to be difficult to talk to and was somewhat distant from other staff. As to desired improvements in interpersonal relationships, the notice of desired improvement provided: Mr. Ellis does not work as effectively with other staff members as might be possible or desirable. He seems to have trouble or resent answering to those in authority over him.... Mr. Ellis needs to stay in closer contact with teachers and administrators as together they decide on strategies to help students needing counseling or referrals for possible E.S.E. staffing....Staff or small group meetings will be set up upon request to discuss staff relations and counseling procedures. Expectations of the Counselor will be fully discussed at the beginning of the new school year....Better staff relations will hopefully develop by the end of the 1990-91 school year. Mr. Shearer believed that the Respondent failed to spend adequate time assisting referred students. As to desired improvements in utilization of time, the notice of desired improvement provided: Mr. Ellis does not use his time as efficiently or as effectively as he might during the school day....Mr. Ellis needs to show more initiative in scheduling his time appropriately during the school day....Schedules may be provided or developed and/or a classroom assigned to help him achieve more contact with students in need of counseling. A log of counseling sessions may be put to use....Improvements are expected during the 1990-91 school year. Mr. Shearer was sometimes unable to locate the Respondent on-campus, sometimes due to the Respondent's alleged illness (notice of which was not timely provided), other times because the Respondent would leave the Westside Elementary campus or would walk to another school located on the same property with Westside. As to desired improvements in routine office procedures, the notice of desired improvement provided: Mr. Ellis does not follow normally accepted office procedures. He does not always call in when he is to be out for the day, does not discuss extended absences with his supervisor, misses too much time from work, and has had a problem with unauthorized long distance phone calls....Mr. Ellis will conform to normal office procedures that are expected of all staff members.... A full explanation of what is expected of Mr. Ellis will be given by the Principal during the week of pre-planning....These problems should be corrected immediately, but for certain by the end of the 1990-91 school year. By memorandum of April 19, 1990, the Respondent replied to Principal Shearer's April 4th assessment. The Respondent stated that he believed he worked effectively with other staff members and did not have trouble in working or answering to those in authority. He noted that there were no complaints from teachers related to him and that he had never refused to perform assigned tasks. He wrote that he believed his time to have been utilized efficiently, that he had not been made aware of any related problems prior to the evaluation, and that he was amenable to suggestions related to more effective use of time. The Respondent insisted that he followed routine office procedures, although he acknowledged one instance of absence without notifying superiors. He noted that the matter of the inappropriate telephone calls had been handled through the letter of January 26, 1990 (a copy of which had been placed in the Respondent's personnel file) and through the reimbursement for such calls. He concluded, "I believe that your formal assessment of my performance should have, for reasons cited above, rated me as "satisfactory" in all areas. I will, however, do all you find necessary in order to demonstrate my better-than-satisfactory performance as a counselor at Westside Elementary School." By letter dated April 20, 1990, Hendry County School Superintendent William C. Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being charged with unsatisfactory performance for the 1989-90 school year. The letter stated, "As provided in F.S. 231.36, you may request to meet with me or my designee for an informal review of the determination of unsatisfactory performance and/or request an opportunity to be considered for a transfer to another appropriate position, with a different supervising administrator, for the 1990-91 school year." The letter also stated that during the 1990-91 school year, the Respondent would "be provided assistance and inservice training opportunities to help correct the noted deficiencies" and that he would "be evaluated periodically to keep you apprised of progress." Although Principal Shearer was available to offer assistance or additional information related to the performance deficiencies, the Respondent demonstrated no interest in taking advantage of the available assistance, apparently because he did not agree with the evaluation. There is no evidence that the Respondent requested transfer to another position with a different supervising administrator. Thereafter, Mr. Shearer determined it necessary to provide a structured setting for the Respondent to perform his responsibilities. By letter dated June 21, 1990, Principal Shearer provided and outline of the guidance program he expected the Respondent to implement during the 1990-91 school year. The Respondent was assigned a permanent classroom for the school year which was designated as the "time-out or in-school suspension room" which was a part of the school's discipline program. "Disruptive" and "disinterested" students were to be referred to the Respondent's classroom. Such students would "benefit from more direct contact with the Guidance Counselor than we have been able to give in the past years." The Respondent was assigned three tasks related to the permanent classroom setting. He was to develop and maintain a record-keeping system for each child that included basic information, the reason for the referral to time- out, and "any notes on types of counseling or any progress made...." He was to "supervise and hopefully motivate students to keep up with their classwork while in time-out." Finally, he was to "use whatever opportunities that arise, individually or collectively, to counsel with students about the feelings or attitudes that led to their disruptive behavior or lack or (sic) classroom performance and ways to deal more appropriately with these feelings." The June 21 letter provided that the Respondent would "have a good deal of autonomy within your classroom, but it should be understood...that this is not a 'reward' or play time, or something to be looked forward to. The students will have no 'special area' privileges while in your room....The idea is total isolation from other students until dismissal time." The letter indicated that this job description was unusual for a school counselor, but that the program would permit the Respondent to have "much more direct contact with students who are having trouble succeeding in school." Concluding, the principal wrote that the plans were "subject to fine-tuning" as the year progressed, and that he welcomed the Respondent's input in the program. A memorandum from the principal went to all Westside Elementary teachers on or about August 22, 1990 which provided information on the Respondent's "time-out" classroom. The information in the memorandum was essentially similar to that in the June 21 letter to the Respondent. Between August 6 and August 17, 1990, the Respondent placed 7 long distance telephone calls from his school office telephone. The calls, totaling $17.25 in tolls, were not school related. By letter to the Respondent dated October 11, 1990, Principal Shearer wrote that, "...once again, in spite of my clear instructions to the contrary, you have charged personal telephone calls on our school telephone." The letter stated that "NO MORE personal calls are to be charged, by you, to our school phone! This is not a service available to you, or any other staff member." The Principal required immediate reimbursement and placed a copy of the letter in the Respondent's personnel file. The letter noted that continued noncompliance would result in more serious discipline being imposed. During the 1990-91 school year, Mr. Shearer often relieved the Respondent from the Time-Out room during lunch and planning periods, and had frequent contact with the Respondent. The Respondent was often observed sitting at the desk, his feet up on the desktop, reading a newspaper or book. Occasionally, the Respondent would be eating in the classroom. Additionally, there were complaints from the adjoining school that the Respondent took Time- Out students on walking tours around the other school campus, allowing them to purchase and eat snacks. Mr. Shearer believed the situation to be inappropriate, given that the Time-Out room was directed towards correcting inappropriate behavior, and spoke to the Respondent on several occasions about the situation, but the Respondent apparently did not believe the matter to be a problem. Mr. Shearer also encouraged the Respondent to discuss counseling concerns with highly-regarded staff from other schools and to attend relevant conferences, but the evidence fails to establish that the Respondent took advantage of such opportunities. On January 8, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The evaluation was reviewed by Shearer and the Respondent on January 18, 1991. The Respondent signed the evaluation. The Respondent's evaluation in the area of "interpersonal relationships" had improved to satisfactory. Mr. Shearer noted that the Respondent still required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was not noted. The comments section provided that: Some improvement noted in interpersonal relationships. Paperwork is very weak. Personal phone calls were made again this year on school phone and on school time against my direct instructions. Does not make use of available time with problem students in Time-out or with other students when counseling could be beneficial. Continues to miss entirely too much time from school. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that if improvements were required by March 15, 1991 or that the principal would recommend non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Does not make best use of extended time with problem kids in Time-Out. Does not actively seek out students or opportunities to counsel. Does not adequately follow-up on students referred for counseling....Make school attendance a higher priority. Take the initiative in scheduling students for counseling, those in Time-Out, as well as others who are in need....Keep an active log of students counseled in Time-Out and at other times. Keep a daily "diary" of activities done and students worked with....All necessary forms and papers will be made available. An F.P.M.S. package on "Using Time Efficiently" will be provided. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork is very weak, and record-keeping is almost non-existent. Long-distance personal phone calls have been made on school phones and on school time after direct instructions to the contrary....Record-keeping must be more accurate and more detailed to document work done with and for students. Compliance with directives is mandatory. All calls on school phones will be school related!....Progress will be monitored closely....Assistance will be provided as needed and/or as requested....Notebook with updated forms to be filled out on each student in Time-Out and those counseled otherwise will be provided. Mr. Shearer provided the Respondent with materials appropriate to maintain records on counseling activities. There is no evidence that such materials were utilized or that the Respondent made any effort to address the performance deficiencies noted by Mr. Shearer. On March 26, 1991, Principal Shearer completed a guidance assessment form which set forth the Respondent's professional evaluation and performance ratings. The Respondent refused to sign the evaluation. Mr. Shearer noted that the Respondent required improvement in the areas of "utilization of time", and "routine office procedures". The Respondent's overall performance rating was unsatisfactory. The comments section provided that: Mr. Ellis has made some improvements in his general attitude and has begun to have a little more student contact, but there is still much room for improvement. There are several major areas that are still unsatisfactory. At this time I am recommending that his contract not be renewed for the 1991-92 school year. Attached to the guidance assessment form were "notices of desired improvement" identifying the improvements expected of the Respondent. The notices provided additional information related to the Respondent's performance deficiencies and indicated that the principal was recommending non-renewal of Respondent's employment contract. As to desired improvements in utilization of time, the notice of desired improvement provided: Continues to miss too much time from school. Still spends too much of his school day without direct contact with students. Has not been consistent enough on his follow-up of many of the children referred to him for counseling.... Must make school attendance a higher priority. Must show more initiative in meeting with students having problems. Initial contacts must be followed up and documented on a regular basis....Should meet with teachers on a regular basis to see what students are experiencing difficulties that he might be able to help with....Every consideration will be given to working out student schedules to allow maximum contact time with the Guidance Counselor. As to desired improvements in routine office procedures, the notice of desired improvement provided: Paperwork remains very poorly and sloppily done. Record-keeping is still very sketchy. Record-keeping must be more accurate and more detailed to document work done with students....Assistance will be provided as needed or as requested....Will continue to supply record books, calendars, files, etc. as may be needed to help keep organized and documented. By letter to Respondent dated April 11, 1991, Hendry County School Superintendent Burke informed the Respondent that due to the Principal Shearer's assessment and evaluation, he was being notified that "your performance deficiencies have not been corrected. Further I am notifying you that you shall not be issued a new professional service contract for the next school year." The Time-Out program was continued through the remainder of the 1990- 91 school year, but was thereafter discontinued. Mr. Shearer assessed the program as having been unsuccessful, at least in part due to the lack of interest and negative attitude regarding the program by the Respondent, who believed the program to have been a punitive measure against him by Mr. Shearer. Guidance counselors in the Hendry County Schools are asked to "volunteer" 1/ to assist school officials in obtaining psychological and social histories of students who may be emotionally or environmentally handicapped. The practice is to seek out a counselor who is assigned to the same school as the student. The counselor interviews the child and family, and completes appropriate paperwork containing the relevant information. The forms are not complicated and do not require special expertise to complete. The counselor receives $20 for each complete history taken and $10 to update a previously taken history. The Respondent was asked and agreed to take the history of a specific Westside Elementary School student. Neither the student nor the family spoke English to the extent that the Respondent, speaking only English, would be able to conduct the interview. In such situations, interpreters may be used, but the interview is to be conducted by the counselor. The Respondent did not ask if he could use an interpreter and did not seek approval to give the interview assignment to another teacher. The Respondent asked Rosa M. Santana, a Spanish speaking second grade teacher at Westside Elementary, to perform the interview. He did not offer to compensate her prior to her performing the interview. On or about April 28, 1991, Ms. Santana interviewed the child and family. Ms. Santana took her mother, who speaks Spanish fluently, with her to the interview. The Respondent was not present when the interview was done. Ms. Santana completed the interview form and listed herself as the interviewer. Ms. Santana thereafter returned the interview form to the Respondent. He altered the interview form to identify himself as the interviewer and Ms. Santana as an interpreter. He then submitted the completed form and the bill for $20 to school officials as his charge for taking the student's social history. School officials became aware of the fact that the Respondent did not complete the interview, and paid the money to Ms. Santana rather than to the Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Hendry County School Board enter a Final Order terminating the professional services contract of Aaron Ellis at the end of the 1990-91 school year. DONE and RECOMMENDED this 22nd day of November, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1991.
