Findings Of Fact This case was presented for consideration based upon the Administrative Complaint and subsequent amendment presented by Ralph D. Turlington, as Commissioner of Education, State of Florida, against Michael H. Deis, holder of teaching certificate No. 356436, Rank II, post graduate valid through June 30, 1987. The accusations set forth in the Administrative Complaint and its amendment are as indicated in the Issues statement to this Recommended Order. The remaining facts found result from a formal Subsection 120.57(1), Florida Statutes, administrative hearing held upon request of the Respondent. The Respondent was born March 7, 1945, and is married and has three children, ages one and one-half, four, and eight. The Respondent has been married since June 17, 1972. Respondent has a Bachelor of Science degree, a Masters Degree in Business Administration and fifty-five hours' credit toward a Doctorate of Philosophy in Education. The Respondent has been employed with the Collier County School System in the State of Florida since February, 1974. Prior to that time, the Respondent had been employed in management for General Motors Corporation and with General Development Corporation for a period of three years in Miami, Florida. After becoming an employee of the Collier County School System, the Respondent taught math in the sixth through eighth grades at East Naples, Florida, Middle School. The range of ages for those students was twelve to fourteen years old. Beginning in the January term of 1975, the Respondent taught adult education in the Collier County School System. In 1976, Respondent moved to Everglades High School where he coached boys' basketball, varsity basketball and girls' basketball. His academic responsibility at that school included the teaching of basic math and other subjects to boys and girls whose ages ranged from fourteen to twenty. The Respondent then moved to Barron Collier High School in September, 1978, as a daytime adult education instructor. The age range for those students was from sixteen to eighty-three. In the school years 1978-79 and 1979-80, the Respondent coached girls' softball, girls' junior varsity basketball and assisted with the track program for girls. The ages of the girls Respondent coached or assisted were fourteen through eighteen. During the school year 1978-79, the Respondent met one Lori Tomaselli, a member of the girls' basketball team. This initial introduction was followed by correspondence of August 1979, addressed to the Respondent from Lori Tomaselli in which she made comment about her summer vacation and related that she had "missed" the basketball program. At that time Tomaselli was fifteen years old. The letter of August, 1979, was followed by an act on the part of Tomaselli on December 20, 1979, in which she walked up to the Respondent, turned him around and gave him a kiss. Deis' reaction was one of sunrise, followed by a comment to the effect that she was his favorite basketball player. She replied that she had cared for him since the first basketball meeting in October, 1978, when she was fourteen years of age. On December 30, 1979, Tomaselli wrote Deis while she was vacationing in the State of New York. The Respondent did not write in return or contact her. Respondent next saw Tomaselli on January 5, 1980, after she had returned from her vacation and was a participant in a basketball game which the Respondent coached. From the time of this basketball game forward through the basketball season, the Respondent would sit next to Tomaselli on the bus used to transport the basketball team. Approximately two weeks beyond January 5, 1980, the Respondent selected Tomaselli as his classroom assistant or aide. Tomaselli served in this capacity for a period of approximately two months, one hour each day. In the initial part of 1980, the Respondent would also assist Tomaselli with her math and science lessons. Beginning in February 1980, Tomaselli kept the statistics for the girls' softball team which was coached by the Respondent. At the time, Tomaselli was also participating on the girls' track team. The relationship between the Respondent and Tomaselli escalated and on March 7, 1980, Tomaselli kissed the Respondent and gave him a hug. The occasion for this display was that of the Respondent's birthday. Also in the month of March, the Respondent indicated that he began to feel an "interest" in Tomaselli. Prior to the spring school break for 1980, the Respondent paid Tomaselli $50.00 to assist in painting his home. During that same vacation, the Respondent met Tomaselli at a local beach, he coincidence. At one of the track events at which the Respondent was assisting and the young woman Tomaselli was participating, Tomaselli hugged Deis in the presence of her parents. During the time period of the track season, the Respondent drove Tomaselli to her home after school on three occasions and explained his reason for doing so as being one, that a girl friend of Tomaselli's car had broken down; two, that her parents would not pick her up and three, that Tomaselli had asked him for a ride. These rides took place before April 14, 1980. On Sunday, April 13, 1980, the parents of Lori Tomaselli had a discussion with Deis and through this conversation expressed the desire that Deis cease his relationship with their daughter to the extent of not associating with her. Among his responses, the Respondent indicated to the parents that if their daughter were eighteen years old and single, he would ask her out. On that same date, the Principal at Barron Collier High School called the Respondent to inform Deis that the Tomasellis had complained to the Principal. Deis then indicated that he would resign his coaching position effective the next morning. On Monday, April 14, 1980, the Respondent met with the Principal and a Mr. Munz, Assistant Superintendent of the Collier County School System, and as a result of that conference, was given a memorandum which instructed him to have no further contact with Lori Tomaselli. At that meeting, Respondent explained to the school officials that he had a strong emotional attachment for Lori Tomaselli. On the next morning, April 15, 1980, Tomaselli went to Deis' classroom and was shown a copy of the aforementioned memorandum and Deis told her "they would have to cool it." After Tomaselli left his classroom, the Respondent immediately went to see the Principal and told the Principal that he had shown the memorandum prohibiting contact to Tomaselli. As a result of this conversation with the Principal, the Respondent received a second memorandum from Assistant Superintendent Munz which reminded Deis that he was under direct order not to talk to Tomaselli and telling him that the conversation which Deis had had with Tomaselli about the meeting of April 14, 1980, was, by its terms, a violation of the Assistant Superintendent's instructions. The Respondent became angry about the second memorandum in that he thought it was unnecessary. He felt that he was being harassed. As a result of this attitude Respondent began to write to Tomaselli, and she in turn would reply. This letter writing activity continued on a daily basis. In some of these letters, the Respondent instructed Lori Tomaselli, when questioned by the Principal, "to keep cool" and further instructed Tomaselli that when she met with her mental health counselor that she should not indicate that she had been with the Respondent. The letters also indicated to Lori Tomaselli that the Respondent intended to divorce his wife and marry Tomaselli. In addition to the letter writing, Tomaselli began to call the Respondent as much as twice a day, using the cafeteria phone in the school to speak to the Respondent. In May, 1980, the Respondent accidentally saw Tomaselli at a local skating rink while there with his daughter. On May 14, 1980, Deis met with the School Superintendent, Dr. Thomas Richie, and through that conversation agreed to take personal leave. This leave was taken and the Respondent sought psychiatric counseling from Dr. Frank Dennis at the behest of school officials. The leave of absence was from the period May 15, 1980, through May 29, 1980. Dr. Dennis' fees were paid by the Collier County School Board. (During the month of April, 1980, the Respondent had had another meeting with Dr. Richie in which he expressed the opinion to Dr. Richie that he realized his relationship with Tomaselli had become too personal and that he had failed to take steps to correct the situation, and further that he was personally responsible for continuing the development of this relationship.) On May 16, 1980, Tomaselli mailed a letter to the Respondent expressing her affection for him. Around May 18, 1980, Tomaselli ran away from her home and a friend of hers took her to a location where the Respondent, acting as a real estate salesman, was showing a model home. At that time, the Respondent did not want Tomaselli to come into that location and resisted this encounter. The follow-up to the May 18, 1980, meeting was a series of calls from Tomaselli to the Respondent at a residence of a friend of the Respondent's, in view of the fact that Deis had moved from his home. On May 30, 1980, Respondent was called by Tomaselli to ask him to pick her up. The Respondent agreed and after picking up Tomaselli and being afraid of being detected with Tomaselli in his automobile, a circumstance developed in which Tomaselli exited his van and was slightly injured. The Respondent left the area where Tomaselli had jumped from the van and he then removed her property from his automobile. Sometime during the 1979-80 school year, the Respondent had returned Tomaselli's affection by kissing her and expressing his affection for her to the extent of telling Lori Tomaselli that someday she would be Lori Deis, meaning that she would be the Respondent's wife. On July 29, 1980, the Respondent resigned his teaching position in the Collier County School System. After his resignation, there have continued to be letters and telephone communications between tie Respondent and Lori Tomaselli. Those communications were as recent as March 24, 1981, at which time a letter was received by the Respondent from Lori Tomaselli. The relationship between the Respondent and Lori Tomaselli took place at a time when the Respondent was having marital problems and Lori Tomaselli was having difficulty with her parents. Those circumstances continued to exist at the time of the hearing. Nonetheless, the relationship was contrary to the expressed prohibition by the School Administration. The existence of such a relationship was such that it reduced the effectiveness of Deis as a teacher in the Collier County School System and did not provide a proper example for the students, nor allow the Respondent to practice his profession at the highest ethical standards.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Broward County School Board (School Board) is responsible for the operation, control and supervision of all public schools (grades K through 12) in Broward County, Florida (including, among others, Meadowbrook Elementary School (Meadowbrook), Tropical Elementary School (Tropical), and Everglades Elementary School (Everglades)), and for otherwise providing public instruction to school-aged children in the county. For five years, beginning in 2004, Joseph Tamburino was the area coordinator of student services for the School Board's South Central Office (SCO), overseeing the activities of the office's five-person secretarial staff, as well as the approximately 70 "itinerant" school psychologists and school social workers assigned to work at schools within the SCO's service area. Among these schools were Meadowbrook, Tropical, and Everglades. Respondent has been employed by the School Board as a school social worker since September 2000. She presently holds a professional services contract. From 2004 until August 2009, Respondent worked out of the SCO under the immediate supervision of Mr. Tamburino. During this time, she never received less than a satisfactory annual performance appraisal from Mr. Tamburino; however, in the "comments" section of the last appraisal he gave Respondent (for the 2008-2009 school year), Mr. Tamburino did write, "Jessica should work on improving absenteeism and performance issues such as task completion, timelines and adhering to work hours." During the 2006-2007 school year, Mr. Tamburino "beg[a]n to have problems" with Respondent's being where she was supposed to be during the school day. These "problems" persisted, despite Mr. Tamburino's efforts to address them at meetings with Respondent and in written correspondence he sent her. Following the end of the 2006-2007 school year, Mr. Tamburino issued Respondent a "Letter of Reprimand," dated August 14, 2007, which read as follows: This correspondence is submitted as a formal reprimand for your failure to follow office procedures. This is the second occasion that I have had to meet with you regarding not being present at your assigned schools for the full workday. We met on February 1, 2007 because you were not in your assigned schools for the full workday (7.5 hours) over a period of five days. Furthermore, we met on June 1, 2007, because you were not in your assigned schools during the hours you were required to be present on May 4 and May 24, 2007. Know and understand that this behavior cannot and will not be tolerated by this administration. You are hereby directed from this point forward, to comply with all administrative directives. Failure to comply will result in further disciplinary action such as a referral to Professional Standards and the Special Investigative Unit, suspension or termination. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on August 14, 2007, signifying that she had "read and underst[ood] [its] contents." Less than four months later, Mr. Tamburino issued Respondent another "Letter of Reprimand," which was dated December 7, 2007, and read as follows: This letter is submitted as a formal reprimand for your continued failure to follow office procedure and falsification of records. On November 8, 2007 you were not in your assigned school for 7.5 hours. You called the South Central Student Services office and reported that you were leaving New River Middle School at 4:00 p.m. However, you were seen at a store at a shopping plaza at 3:00 p.m. Although you did not work a full day on November 8, 2007, you falsely reported to a Student Services secretary that you finished your workday after 7.5 hours. This is the second written reprimand that you have received within the last four months for failure to follow office procedures and falsification of records. This behavior cannot and will not be tolerated. You are directed to comply with office procedures, work your full 7.5 hour day, and sign in and out with accurate times. Failure to comply will result in further disciplinary action. Your signature evidences receipt of and an understanding of this document. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. Ten days after evidence of your knowledge of this correspondence, it will become public record. Respondent signed this "Letter of Reprimand" on December 17, 2007, signifying that she had "read and underst[ood] [its] contents." Respondent did not file a grievance "specifically challenging" either the August 14, 2007, "Letter of Reprimand," or the December 7, 2007, "Letter of Reprimand." On March 17, 2008, Dr. Tamburino sent a memorandum to Respondent, which read, in pertinent part, as follows: As you are aware, we have had two recent meetings that have included discussions of following office procedures, the provision of social work services and collaboration with the community liaison and other personnel. On February 1, 2008 we had a meeting with Jerrod Neal from BTU and Ellen Williams, the Social Work BTU Steward. We examined possible discrepancies between dates listed for home visits on a log at New River and your November mileage voucher. Although there were L-panel entries to verify the home visits, there was inconsistent documentation of the addresses on the mileage voucher. However, you decided to withdraw your request for mileage reimbursement. Suggestions to improve your work performance were discussed. These include the following: * * * - Specific time of the home visits, including leaving and returning to campus, need to be documented. During the 2008-2009 school year, Respondent was assigned to provide school social work services at three schools: Meadowbrook, Tropical, and Everglades. She was supposed to be at Meadowbrook on Mondays, Tropical on Wednesdays, and Everglades on Thursdays. On Tuesdays, she went to whichever of the three assigned schools "need[ed] [her]," and she also did "home visits." Fridays were designated as "office days." On these "office days," Respondent was expected to do "paperwork" that needed to be completed. Respondent was allowed to use office space at Meadowbrook as her "Friday office" instead of going to the SCO (which was farther from her residence than was Meadowbrook). Respondent missed a considerable amount of work during the 2008-2009 school year due to her daughter's, as well as her own, health-related issues, "exhaust[ing] her sick leave" before the year was half over. (By December, she "didn't have any sick days" left.) Respondent and the other school social workers and school psychologists working out of the SCO were required to notify the office's secretarial staff, by telephone (or in person, if at the SCO), of their whereabouts whenever they arrived at or left a work-related destination during the school day (Call In Office Procedure). It was the duty and routine practice of the secretarial staff, upon receiving such a call, to enter the information provided by the caller concerning the caller's location (as well as the date and time the call was received) on an "online call-in log" (Call Log) maintained by the SCO so as to have a record of these calls. The Call In Office Procedure and other "[o]ffice [p]rocedures" were discussed in a document entitled, "Office Procedures: 2008-2009 School Year," which Mr. Tamburino provided "[a]ll the South Central Office . . . [p]ersonnel," including Respondent, at the very beginning of the 2008-2009 school year. The document read, in pertinent part, as follows: Attendance is reported daily by Joyce [Doe] (social workers) . . . to the payroll department. You must call Joyce . . . prior to taking any leave (e.g., personal, sick, other.) You must call each day you are taking sick leave (unless otherwise arranged with the Area Coordinator [Mr. Tamburino]). Call the office twice daily, when you arrive at your location and before you leave for the day (for example, for most elementary schools by 7:30 AM, and 3:00 PM). You should call from a school telephone. If you do not call in, you may be considered absent. You are expected to be in your assigned school 7.5 hours (same work hours as the teachers). If you leave a school for another destination, be sure to inform personnel at school and one of the secretaries in our office. When you are at the Area Office, please be sure that our secretaries log you in. A schedule of team meetings is provided at the beginning of each year. Attendance at all scheduled team meetings is mandatory. A planning day is a 7.5 hour workday. * * * Mileage vouchers must be submitted within 30 days after the end of the month per the Superintendent. Use the exact mileage to schools listed in SCA mileage chart. Requests for more than one month may not be approved. * * * You must request and obtain an approved TDA [Temporary Duty Authorization] from the Area Coordinator when performing duties in a different location other than your regular assignment. TDA request forms should be completed 10 days prior to the workshop/event. Return to the office at least once a week to handle office duties. The Area Coordinator monitors the quality of your work and evaluates your performance at least annually. The Area Coordinator makes all school assignments. In addition to having to follow these SCO "[o]ffice [p]rocedures," Respondent and her fellow "itinerant" workers, when they were at their assigned schools, were "under [the] direction" of the school's principal and had to do what the principal "dictated." During the 2008-2009 school year, the principal of Meadowbrook "wanted her ['itinerant'] employees to sign in/sign out when they came on [and when they left] campus," and there was a "sign in/sign out" sheet posted at the school for "itinerant" employees to sign, date, and note their "time in" and "time out." Respondent "knew" of Meadowbrook's "sign in/sign out" "procedure," and routinely complied with it (when she was actually at the school that school year). Respondent was not present, and therefore did not "sign in," at Meadowbrook on any of the following dates: Friday, October 3, 2008; Friday, October 31, 2008; Friday, January 9, 2009; Friday, February 6, 2009; Friday, February 13, 2009; Friday, February 20, 2009; and Monday, February 23, 2009. Nonetheless, she telephonically reported to the SCO secretarial staff that she was at Meadowbrook on each of these days (as reflected by the entries made on the Call Log), obviously knowing this information to be false.4 February 4, 2009, was a Wednesday, the day Respondent was supposed to be at Tropical. On that day, Respondent telephoned the SCO secretarial staff at 8:05 a.m. to report she was at Tropical, and called back at 5:56 p.m. to advise that she was leaving the school (as reflected by the entries made on the Call Log). In fact, Respondent was not at Tropical during the school day on February 4, 2009.5 Her reporting otherwise was a knowingly-made false misrepresentation. March 20, 2009, was a Friday and thus an "office day" for Respondent. Respondent had made arrangements to attend a conference that day. In accordance with the "Office Procedures: 2008-2009 School Year" that Mr. Tamburino had handed out at the start of the school year, Respondent had "request[ed] [on February 25, 2009] and subsequently obtain[ed] [on March 16, 2009] an approved TDA" from Mr. Tamburino to go to the conference (instead of doing the work she was "regular[ly] assign[ed]"). Respondent, however, did not go to the March 20, 2009, conference.6 Nonetheless, at 8:40 a.m. on March 20, 2009, she falsely and deceptively reported to the SCO secretarial staff over the telephone that she was on her "temporary duty" assignment (at the conference). At no time that day did Respondent advise the SCO secretarial staff that she was at her regular "Friday office" location, Meadowbrook,7 or that she was leaving that location (to pick up her sick daughter at school, or for any other reason). Furthermore, Respondent's leave records reveal that she did not take any type of leave that day. (Had she taken leave to care for her sick daughter that day, it would had to have been unpaid leave because she had no paid leave time left.)8 To receive reimbursement for non-commuting "travel expenses [she claimed she incurred] in the performance of [her] official duties" as a school social worker (that is, for mileage in excess of the 22.6 miles from her home to her office (at Meadowbrook) and back, reimbursed at a rate of 55 cents per mile, plus parking and tolls), Respondent had to submit mileage vouchers (on School Board Form 3042, Revised 09/05) to Mr. Tamburino for his approval.9 Respondent certified, by her signature on the forms, that her "claim[s] [were] true and correct" and that the "expenses [claimed] were actually incurred by [her]." Among the mileage vouchers she submitted were those covering the months of January 2009 (January Voucher) and February 2009 (February Voucher). There were entries on both the January and February Vouchers that were inconsistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on the dates for which these entries were made (as reflected by the entries made on the Call Log). On the January Voucher, for Tuesday, January 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, January 6, 2009, she had telephonically reported to the SCO secretarial staff that she was first at Meadowbrook, then at the SCO, and finally on a home visit. On the January Voucher, for Friday, January 9, under "Places Visited," Respondent put, "Home to Meadowbrook" (a trip of 0 "Net [Reimbursable] Miles"), "Meadowbrook to KCW [School Board headquarters]" (a trip of 5.3 "Net [Reimbursable] Miles"), "KCW to Everglades" (a trip of 17.7 "Net [Reimbursable] Miles"), and "Everglades to Home (a trip of 14.3 "Net [Reimbursable] Miles"); however, on the day in question, January 9, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at School Board headquarters and at Meadowbrook.) On the January Voucher, for Tuesday, January 20, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, January 20, 2009, she had reported to the SCO secretarial staff that she was first on a home visit and then at Everglades. On the February Voucher, for Tuesday, February 3, under "Places Visited," Respondent put, "Home to Everglades to Home" (a trip of 28.6 "Net [Reimbursable] Miles"); however, on the day in question, February 3, 2009, she had not reported to the SCO secretarial staff that she was at Everglades any time that day. (She had only reported being at Meadowbrook and on a home visit.) On the February Voucher, for Friday, February 6, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 6, 2009, she had reported to the SCO secretarial staff that she was first on a home visit, then at Meadowbrook, and finally at the SCO. On the February Voucher, for Friday, February 13, under "Places Visited," Respondent put, "Home to SCAO [SCO] to Home" (a trip of 10.6 "Net [Reimbursable] Miles"); however, on the day in question, February 13, 2009, she had not reported to the SCO secretarial staff that she was at the SCO any time that day. (She had only reported being on a home visit and at Meadowbrook.10) On the February Voucher, for Wednesday, February 4, under "Places Visited," Respondent put, "Home to Tropical to Home" (a trip of 9.8 "Net [Reimbursable] Miles"). Unlike the other entries on the January and February Vouchers discussed above, this entry was entirely consistent with what Respondent had telephonically reported to the SCO secretarial staff concerning her whereabouts on that day; however, as noted above, she had not been truthful in making such a telephonic report to the SCO secretarial staff. It was Mr. Tamburino's responsibility to check all of his subordinates' mileage vouchers, including Respondent's, "for accuracy" before approving them. Because "there [were] discrepanc[ies] between what was on the [January and February] [V]oucher[s] and what was on the [C]all [L]og," Mr. Tamburino did not approve these vouchers. Instead, he "forward[ed] the mileage voucher issue to the [School Board's Office of Professional Standards and Special Investigative Unit] for investigation."11 On or about April 23, 2009, Respondent was provided a Notice of Investigation (dated April 17, 2008), which read as follows: This correspondence is provided as formal notice of investigation into a complaint received in this office regarding allegations that you falsified records. You will be contacted in the near future for the purpose of giving a statement. You have the right to representation through all phases of this investigation. You are directed not to engage the complainant, or any student witness, or any other witness in any conversation regarding the matter under investigation. A violation of this directive could result in disciplinary action for insubordination. Questions regarding the status of this investigation are to be directed to Joe Melita, Executive Director of Professional Standards & Special Investigative Unit at (754)321-0735. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file will be part of your personnel file and will be public record and it will become available for inspection by the public ten (10) days after completion of the investigative process. Investigator Johanna Davidson was the School Board employee in the Office of Professional Standards and Special Investigative Unit who conducted the investigation. As part of her investigation, Investigator Davidson took a sworn statement from Respondent on June 4, 2009.12 In her sworn statement, Respondent told Investigator Davidson, among other things, that she arrived at Meadowbrook at "around 8:00" a.m. on March 20, 2009, and stayed there "all day"13; that she "knew that [signing-in] was the procedure" at Meadowbrook; that this "procedure" had been in place for the past year and a half; that she signed in at Meadowbrook "99 percent of the time"; that she "may have missed one or two sign-ins" at Meadowbrook, but she did not "think [she] had"; and that she is "a very procedure and policy oriented person," so it would have been "odd" had she not signed in at Meadowbrook, even during the time, from January to April 2009, when she had been "on crutches."14 When asked by Investigator Davidson "what happened that day, February 4, 2009," Respondent made no mention of having been in the teacher's lounge at Tropical (where, in her testimony at the final hearing, she falsely claimed she had been the entire school day on February 4, 2009, leaving only once to go to the bathroom across the hall). Rather, in response to Investigator Davidson's inquiry, she suggested that this day (February 4, 2009) might have been one of the many days that school year that she had "taken off" because of health-related issues and that she had not "communicated properly" concerning her having "taken off" that day. Investigator Davidson completed her investigation and issued an Investigative Report detailing her findings in late June 2009. Investigator Davidson's Investigative Report contained a section entitled, "Summary of Investigation," the first paragraph of which read as follows: A Personnel Investigation Request pertaining to School Social Worker Jessica Harrison was received in the Office of Professional Standards & Special Investigative Unit. Ms. Harrison was accused of Falsification of Records stemming from the following alleged incidents: Ms. Harrison allegedly submitted a Temporary Duty Authorization (TDA) request to attend a conference but did not attend the conference, and allegedly reported to the South Central Area Student Services office that she was in attendance. Two of Ms. Harrison's assigned schools reported that Ms. Harrison was not in attendance on several days. Ms. Harrison allegedly did not report her absences to the South Central Area Student Services office. Ms. Harrison allegedly falsified mileage vouchers. The information that Investigator Davidson had obtained supporting these allegations was detailed in succeeding paragraphs of this section. (It was this information upon which the "[s]pecific [c]harges" in the instant Administrative Complaint were based.) The School Board's Professional Standards Committee met on September 9, 2009, to consider the results of Investigator Davidson's investigation and "found probable cause of falsification of records" warranting Respondent's termination. On September 16, 2009, Craig Kowalski, the Acting Executive Director of the School Board's Office of Professional Standards and Special Investigative Unit, sent Respondent a letter, which read as follows: The Professional Standards Committee met on September 9, 2009, and found probable cause of falsification of records. The Committee has recommended termination. Please be advised by way of this correspondence that you have been scheduled for a pre-disciplinary conference on Monday, October 5, 2009, at 11:00 a.m. in my office, which is located on the third floor of the Technical Support Services Center, 7720 West Oakland Park Boulevard, Sunrise, Florida. You have the right to representation at this conference. If for some reason you are unable to be present at this conference you must contact my office by 4:00 p.m. on Thursday, October 1, 2009. You have previously been furnished with a full report. You are not to disseminate these documents to the public and/or media since it may contain protected information. If you have a representative, it is your responsibility to furnish him/her with copies of your documentation. Your failure or refusal to appear at this conference will be considered a waiver of this procedural requirement. A copy of the Special Investigative Unit report and this letter are being forwarded to the Professional Practices Department of the State Department of Education to determine if certificate disciplinary action is warranted. This letter of reprimand is being placed in your personnel file within the Records Department of the School Board of Broward County. This is your notice pursuant to Florida Statute 1012.31 that the material contained in the investigative file is now a part of your personnel file and is a public record and it will become available for inspection by the public ten (10) days from receipt of this letter. Any request made by the public for the documentation referred to above will be provided in accordance with the laws of the State of Florida. Questions regarding this correspondence are to be directed to my office (754)321-0735. The "pre-disciplinary conference" was held on October 5, 2009, as scheduled. Present at the conference were Mr. Kowalski; Carmen Rodriguez, Esquire (on behalf of the School Board); Respondent; and Jerrod Neal of the Broward Teachers Union, whom Respondent had asked to speak on her behalf. Prior to the conference, Respondent had received, and had had the opportunity to review, Investigator Davidson's Investigative Report. During the conference, Respondent affirmatively adopted the admission made by her representative at the meeting, Mr. Neal, that she had engaged in the "falsification" of which she was being accused (as described in the Investigative Report). The following is a verbatim recitation of what was said at the October 5, 2009, "pre-disciplinary conference": MR. KOWALSKI: This is a pre-disciplinary hearing for School Board employee Jessica Harrison. We are here pursuant to an investigative report dated June 30th, 2009. This investigation was based upon allegations of falsification of records. The Professional Standards Committee has reviewed this matter and has made a recommendation for disciplinary action. The disciplinary action is for termination. Have you received a copy of the investigative report? MS. HARRISON: Yes. MR. KOWALSKI: The purpose of this pre- disciplinary conference is to give you the opportunity to bring forward any additional matters that you believe should be considered before final decision as to disciplinary action is reached. Such matters include any additional evidence, witnesses or any matter that you believe should be considered. This is also an opportunity to say anything which you believe should be considered on your behalf. I am going to ask you if you identify additional witnesses, please identify what you believe the witness knows or would testify to or what the witness can contribute to this investigation. Do you understand the purpose of this meeting? MS. HARRISON: Um-hm. Yes. MR. KOWALSKI: Is there anything you wish to say, do you have any additional matters that you believe should be considered.? MR. NEAL: Let me speak on her behalf, because I think Ms. Harrison has pretty much said a lot of things at the Professional Standards Committee meeting. Since we've talked, since the information that was gathered during the investigation, I have really had a chance to look over it, I was really surprised by the recommendation of termination. Not eliminating what happened, because what happened as far as falsification of records, it was done. But circumstances surrounding it, I don't think it really warrants termination, considering that it is not an easy thing when you're going through a lot of personal problems. Once again, it doesn't justify what was done. But I think under the circumstances, decisions were made with not a lot of clear thought, and I really believe that Ms. Harrison's intention, from what I have known over the last couple of years, have always been good. I just think it's a matter of the things that she was actually going through. She should have brought them to the forefront earlier so there could have been a better understanding of what was going on, not an excuse for it, but a better understanding for what was going on. And you know, I would not be in my duty if I don't mention the fact that there has been so much, or so many other things that have been done through the district that should have warranted termination and people were not terminated. And I just think this is a situation where termination is to the extreme. Whereas some sort of punishment should happen, but termination is just way too much for this situation, because I think in her state of mind as she is now, I don't think these mistakes will be made again. MR. KOWALSKI: Okay. Do you want to add anything Ms. Harrison? MS: HARRISON: I think he summed it up. MR. KOWALSKI: Okay. Thank you. We'll let you know the outcome. MR. Neal: Okay. About how long will that be. And he will let you know, so that means you will have to let me know once they let you know. MR. KOWALSKI: I have to meet with the Superintendent, and so within two weeks. MR. NEAL: Okay. Until then you just go back to doing what you have been doing. MS. HARRISON: Okay. MR. NEAL: All right. Appreciate it. Ms. RODRIGUEZ: Thank you. Mr. NEAL: Thank you. (emphasis supplied).15 The plea for leniency that Mr. Neal made on behalf of Respondent proved to be unsuccessful. On October 30, 2009, Broward County Superintendent of Schools Notter issued an Administrative Complaint recommending that Respondent be terminated for the "falsification" of attendance records and mileage vouchers described in Investigator Davidson's Investigative Report (conduct that Respondent had admitted, at the October 5, 2009, "pre-disciplinary conference," she had engaged in).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Broward County School Board issue a final order terminating Respondent's employment as a professional service contract school social worker with the School Board for the reasons set forth above. DONE AND ENTERED this 18th day of November, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2010.
Findings Of Fact Respondent was reassigned to Douglas MacArthur Senior High School- North, an alternative school, on December 16, 1982, because of his unacceptable conduct in Grade 9 at North Miami Junior High School. Petitioner presented evidence of 16 incidents of conduct by Respondent which required disciplinary action in the year preceding his reassignment to the alternative education program. Additionally, his grades in all courses were unsatisfactory at the time of reassignment. Respondent did not accept the alternative school assignment and instead obtained employment at a restaurant. He is now living with his grandmother, Mrs. Helen Wood, who seeks his return to a regular junior high school program. She has discussed this proposal with the principal of Thomas Jefferson Junior High School and he apparently agrees with her. Respondent's evidence established that his family life was difficult and disruptive during the period of his misconduct. His situation has now stabilized and he is responsive to his grandmother's supervision. He should, therefore, be given an opportunity to return to the regular academic program (Grade 9) at Thomas Jefferson Junior High School.
Recommendation In consideration of the foregoing, it is RECOMMENDED that Petitioner enter a Final Order classifying Respondent as a disruptive student, but permitting him to attend the Thomas Jefferson Junior High School in a probationary status. ENTERED this 6th day of May, 1983, at Tallahassee Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: Mark Valentine, Esquire 3000 Executive Plaza 3050 Biscayne Boulevard Miami, Florida 33137 Mrs. Helen Ward 1000 Northwest 153rd Street Miami, Florida 33169 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132
The Issue The central issue in this case is whether the Respondent, Sean F. McKinney, 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 Miami Carol City Senior High School in Dade County, Florida. During the 1985-86 school year, Respondent attended junior high school and received failing grades in all of his academic courses. Respondent's promotion to Miami Carol City Senior High was done in error. Respondent's grades for the 1986-87 school year, the first two grading periods, were as follows: COURSE ACADEMIC GRADE EFFORT CONDUCT Mathematics 1st F 3 D 2d F 3 F Physical 1st F 3 F Education 2d F 3 F Language 1st F 3 F Arts 2d F 3 F Communications Social 1st F 3 D Studies 2d F 3 D Language 1st F 3 C Arts Readings 2d F 3 C Industrial Arts 1st F 3 F Education 2d F 3 F Science 1st F 3 F 2d F 3 F SYMBOLS: GRADE "F" UNSATISFACTORY EFFORT "3" INSUFFICIENT CONDUCT "C" SATISFACTORY CONDUCT "D" IMPROVEMENT NEEDED CONDUCT "F" UNSATISFACTORY Respondent was administratively assigned to the opportunity school on March 23, 1987. Respondent did not enroll at the opportunity school and did not attend classes. Consequently, Respondent's academic record for the 1986-87 term ends with the second grading period. When a student is disruptive or misbehaves in some manner, a teacher or other staff member at Miami Carol City Senior High School may submit a report of the incident to the office. These reports are called Student Case Management Referral forms and are used for behavior problems. During the first two grading periods of the 1986-87 school year Respondent caused nine Student Case Management Referral Forms to be written regarding his misbehavior. All incidents of his misbehavior were not reported. A synopsis of Respondent's misbehavior is attached and made a part hereof. Theresa Borges is a mathematics teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. While in Ms. Borges' class, Respondent was persistently disruptive. Respondent was habitually tardy and/or absent from Ms. Borges' class. When Respondent did attend class he was ill- prepared and refused to turn in assigned work. When Respondent did attempt to do an assignment it was unsatisfactorily completed. The Respondent refused to work and would put his head down as if sleeping in class. On one occasion Respondent grabbed a female student between the legs. Respondent's disruptive behavior was exhibited on a daily basis in Ms. Borges' class. Larry Williams is an English teacher at Miami Carol City Senior High School in whose class Respondent was enrolled. Mr. Williams caught Respondent fighting with another student in class. Respondent failed to complete homework assignments for Mr. Williams and turned in only 3-5 percent of his work. Respondent was disruptive and would walk around the classroom talking to other students. Since Respondent was habitually tardy he would interrupt the class with his late arrival. William E. Henderson is the assistant principal at Miami Carol City Senior High School. Mr. Henderson received the Student Case Management Referral forms that were submitted for Respondent and counseled with him in an effort to improve Respondent's conduct. Additionally, Cora McKinney was contacted with regard to Respondent's discipline and academic needs. Respondent's behavior problems were discussed in-depth with Mrs. McKinney. Such conferences did not result in any changed behavior on Respondent's part. While Mrs. McKinney made a sincere and continuing effort to bring Respondent's grades and behavior into line, such efforts did not alter Respondent's lack of progress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a Final Order affirming the assignment of Respondent to Douglas MacArthur Senior High School-North. DONE and ORDERED this 24th day of August, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1955 Rulings on Petitioner's Proposed Findings of Fact: Adopted in substance in FF #1. Adopted in substance in FF #3. Adopted in substance in FF #2. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #6. Adopted in substance in FF #7. Adopted in substance in FF #7. Rejected as hearsay as to whether this student instigated the fight; otherwise adopted in substance in FF #7. Adopted in substance in FF #5 and attached Synopsis. Adopted in substance in FF #8. Adopted in substance in FF #8. Rejected as unnecessary. COPIES FURNISHED: Jaime Claudio Bovell 370 Minorca Avenue Coral Gables, Florida 33134 Cora McKinney 3450 Northwest 194th Terrace Carol City, Florida 33054 Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County Board Administration Building, Suite 301 1450 Northeast 2nd Avenue Miami, Florida 33132 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 SYNOPSIS OF STUDENT CASE MANAGEMENT REFERRAL FORMS SEAN F. MCKINNEY DATE INCIDENT DISCIPLINE September 26, 1986 excessive absences counseled October 16, 1986 excessive unexcused tardies and absences from class (period) Three days SCSI October 28, 1986 not attending classes conference with mother 3 days SCSI December 11, 1987 fighting excessive tardies 10 days suspension January 13, 1987 disruptive behavior, [grabbed girl between legs] five days SCSI February 5, 1987 defiant, refused to leave school property after hours 5 day suspension March 17, 1987 defiant, in halls unapproved time, left office without permission conference with parent, initiated opportunity school processing March 20, 1987 not attending school 10 day suspension
Findings Of Fact At all times material, Respondent Michael Eric Pose, age fifteen, was a student at West Miami Junior High School (West Miami) in Dade County, Florida. Respondent's academic performance during the 1986-1987 school year was very poor. He received the grade of "F" in every class. His grades for conduct were also mostly "Fs." In addition, he received the lowest grade for effort (3). Respondent's poor academic performance, lack of effort, and unacceptable conduct resulted in his rot being promoted to the next grade. During the first three marking periods of the 1986-1987 school year, Respondent was enrolled in Louise Johnson's math class, where he was marked absent about 58 times and late 12 times. When Respondent did attend classes he would come without materials and refused to do work when materials were provided by his teacher. He failed to complete 99 percent of his homework assignments and refused 95 percent of the time to perform any class work. On at least two occasions, Respondent was caught sleeping in class by Ms. Johnson. The grades he received in that class for academic performance, effort and conduct were "F- 3-F" (scholarship-effort-conduct). Ms. Harriet Wade, physical education teacher, also had Respondent as a student during the 1986-87 school year. In that class, he was absent 60 times and late 8 times. He refused to wear his gym clothing to the physical education class, refused to participate in games or perform exercises, and frequently engaged in activities which disrupted the class, such as talking to other students and wandering over to talk to other groups. He earned "F-3-F". Ms. Wade's normal form of discipline is to assign detentions and/or the running of laps. Respondent refused to serve either punishment on each occasion it was assigned. Respondent's mother offered as an excuse for Respondent's failure to meet the physical education requirements that he had dislocated his hip when he was four years old. However, she also stated that the surgery was deemed successful and it is clear that the proper medical excuses or records were never submitted to school personnel. There is no competent medical opinion that Michael is presently disabled from normal sports or participation in other school activities. In the same school year, Respondent was also a student of Ms. Tania Martinez-Cruz, English teacher. He was absent from her class 64 times and late 6 times. He refused to do classwork 98 percent of the time and never turned in any homework assignments. After it became apparent that Respondent would not bring materials to class, Ms. Martinez-Cruz kept materials in her classroom for him so that he would have no excuse to avoid working in her class. This method failed. Moreover, during the times he did attend class, Respondent spent 90 percent of the class period sleeping, even though she placed him in the front of the class and required him to participate in classwork as much as possible. Student Case Management Referral Forms (SCMRFs) generally reserved for serious behavior problems, were issued on Respondent's behavior by Ms. Johnson, Ms. Wade, and Ms. Martinez-Cruz due to his lack of interest in school, poor behavior, absences, and tardies. In addition, Respondent received five other SCMRFs from different teachers and/or administrators, all of whom complained of his disinterest in school and unacceptable behavior. One such complaint involved breaking in to a teacher's automobile. Because Respondent was frequently engaged in conflicts of a disruptive nature, he was suspended five times during the 1986-87 school year. Mr. Sotolongo, Assistant Principal, had numerous conversations with Respondent's mother regarding his excessive absences, poor behavior and lack of progress. However, to date the mother has not been able to improve Respondent's interest in school. After numerous attempts at counseling the mother and Respondent, a child study team report was made and conference thereon was held. This report and conference resulted in the administrative assignment of Respondent to J.R.E. Lee Opportunity School. The opinions of the Assistant Principal and the other teachers and administrators who had conferences regarding Respondent was that the more structured environment of an opportunity school would be better for him, as opposed to permitting him to remain in the regular school program where he was making no progress.
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 issues in this proceeding involve Petitioners' challenge, pursuant to Section 120.54(4), Florida Statutes, of the proposed adoption by the School Board of school attendance boundaries and attendant policy changes for implementation beginning with the 1981-82 school year. Initially, Petitioners challenged both the proposed zones for high and elementary schools. However, during the pendency of this proceeding, Respondent withdrew the proposed attendance zone changes for elementary schools, thereby rendering issues related thereto moot, and leaving only the high school boundaries for further consideration. In summary, Petitioners claim that the proposed rule amendments, including maps prepared in conjunction therewith, are an invalid exercise of delegated legislative authority by virtue of the School Board's failure to comply with procedural and substantive requirements of Chapter 120, Florida Statutes. Petitioners allege that deficiencies exist in procedures utilized by the School Board prior to publication of its notice of intent to adopt the proposed rules, in the advertisements and economic impact statement prepared in conjunction with the proposed rule amendments, and in the allegedly arbitrary and capricious nature of the Proposed changes from current attendance boundaries. Petitioners further claim that the School Board's announced intention to utilize student race as a factor in drawing attendance zones is unconstitutional and beyond the School Board's delegated legislative authority. The Respondent contends that each of the Petitioners is without standing to maintain this rule challenge pursuant to Section 120.54(4), Florida Statutes; that the preadvertisement procedures followed by the School Board are not jurisdictional insofar as this present proceeding is concerned; that any deficiencies in the legal notices or economic impact statement constitute harmless error; and that the proposed rules are a valid exercise of legislative authority delegated to it in Sections 230.23(4) and 230.232, Florida Statutes.
Findings Of Fact The School Board of Leon County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has proposed for adoption certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle and high schools located in Leon County, Florida. On May 5, 1981, the School Board withdrew previously advertised plans to adopt modified attendance boundaries for the 1981-82 school year, but announced its intention to continue its rezoning efforts. The School Board held a workshop meeting to discuss rezoning on May 14, 1981. This meeting was noticed in the legal advertisement section of the Tallahassee Democrat on that same date. Action on rezoning was taken at the meeting, and the meeting was recessed until the evening of May 18, 1981. No formal notice of the recessing of the May 14 meeting or the reconvening of that meeting on May 18 was published in any newspaper. On May 18, the May 14 workshop was reconvened. At this meeting the public addressed questions to the School Board members and staff. The Board announced at this meeting that it would discuss the matter further at its regular meeting the following night, May 19, 1981, and that the general issue of rezoning was already on the agenda for the May 19 meeting. The School Board also directed the Superintendent to "take administrative steps as are necessary to schedule a special meeting of the Board pursuant to provisions of Section 230.16, Florida Statutes." This reconvened meeting held on the evening of May 18, 1981, was the subject of an article in the May 18, 1981, edition of the Tallahassee Democrat, which carried a news article reporting on rezoning under the headline, "The rezoners are feeling the pressure." This newspaper article included a special separated section entitled "Meeting is Monday," which directed the public's attention to the time and location of the workshop meeting that night. Toward the end of the regular School Board meeting on May 19, 1981, the School Board recessed and subsequently reconvened to discuss rezoning. The School Board held an extensive discussion on various topics related to rezoning, and responded to questions from the public. Two subsequent meetings were then scheduled. The first was a workshop meeting on rezoning to be held on May 25, 1981, and the second was a meeting scheduled for May 26, 1981, to direct the Superintendent to advertise the proposed modified school attendance boundaries. On May 20, 1981, in the Special Notice section of the Tallahassee Democrat, an ad appeared noticing a "special meeting" of the School Board at Belle Vue Middle School on May 26, 1981, beginning at 7:00 p.m., to discuss rezoning. On May 21, 1981, in the Legal Advertisement section of the Tallahassee Democrat, an ad appeared noticing a "special emergency meeting" at Bond Elementary School beginning at 5:00 p.m. on May 26, 1981, to deal with rezoning, which notice indicated that the meeting time and place was a rescheduling of the meeting previously set for Belle Vue Middle School. The May 25, 1981, workshop meeting was noticed in a legal advertisement in the Tallahassee Democrat on May 22, 1981. In a news article on rezoning published on Sunday, May 24, 1981, in the Tallahassee Democrat, which article was entitled "Rezoners can't find all the answers," the purpose, times and locations for both the May 25 workshop and the May 26 special emergency meeting were contained in a special section set off from the remainder of the article. The Petitioners challenging the modification of the high school attendance boundaries in this proceeding testified that they were each present at the May 26 meeting. At the School Board meeting on May 26, 1981, there were approximately forty to fifty members of the public in attendance. Members of the public addressed the School Board during the meeting. Several modifications were made to the maps and the language of the proposed rule amendments at this meeting. At the conclusion of the meeting, the Superintendent was directed to initiate in accordance with Chapter 120, Florida Statutes, the adoption of modified school attendance boundaries and associated language changes in as expeditious a fashion as possible. On June 3, 1981, four legal advertisements pertinent to this proceeding, each entitled "Notice of Intent to Adopt a Rule," appeared in the Legal Notices section of the Tallahassee Democrat. These notices were titled 6GX37-3.02(1) High School; 6GX37-3.02(1) Middle School; 6GX37-3.02(1) Elementary School; and 6GX37-3.02 Assignment of Pupils. Under the economic impact portion of the four advertisements is the phrase, ". . . [p]arents of students who elect to be grandfathered are responsible for transportation and the costs associated with that responsibility." The maps containing the proposed high school attendance boundaries are Respondent's Exhibits 8(d) High School City Map, and 8(e) High School County Map. The two high school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) High Schools. By its actions, the School Board proposes to amend Rule 6GX37-3.02(1) to read as follows: The Establishment of Schools. All public schools operated by the School Board of Leon County, Florida, shall be for its residents and for such other students as may be authorized by the Board and shall be fully desegregated. The School Board shall from time to time promulgate atten- dance zones so that each school will serve those students residing in each such zone. The Board shall also establish student capacities for, and grades served by, each school in the county, which may be modified by the Board as required. Maps showing the attendance zones applicable to each school, including grades served by each school, shall be maintained in the Office of Student Services and shall be available for public inspection. The School Board also proposes to amend Rule 6GX37-3.02(2) to add the following provision: Grandfathering. The following standards shall be for grandfathering certain students, provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee. The Board shall, upon request, allow students who were enrolled in a high school during the 1980-81 school year to remain at that same high school if the new zones for the 1981-82 school year put them in the attendance zone of a different high school so long as the parents shall be responsible for all necessary transportation. (Emphasis added). The School Board is not presently under any federal or state mandate to rezone the school system in Leon County. The School Board is, therefore, performing a purely discretionary function in undertaking its current rezoning effort. Respondent's express purpose in rezoning Leon County high schools for the 1981-82 school year is . . . to make more effective use of school facilities and to seek greater racial balance among the four high schools." In the preparation of school attendance boundaries the School Board, for statistical purposes, divided Leon County into a large number of small geographical areas called "study areas" or "study zones." The number of students residing in each study area was determined by both race and grade level, and this information was then placed in a computer to establish an accurate baseline of current attendance data for making various enrollment projections. In connection with the proposed zoning changes, the School Board administrative staff attempted to bring current and make as accurate as possible the data used in the rezoing process. Current enrollment figures at the high school level were updated through April 8, 1981. In making the various projections based upon available data, the School Board, through its consultant, used "cohort survival rates," a student projection technique developed by the Florida Department of Education for use throughout the state by school districts considering modification of school attendance boundaries. It is recognized that, although this projection technique is commonly accepted, it is subject to the normal errors inherent in any such predictive technique. On February 3, 1981, the School Board adopted five of eight criteria recommended by the Superintendent to be considered in drawing new attendance boundaries. These criteria, although never formally adopted as "rules," were used by community volunteers, staff, consultants, and ultimately the School Board itself in the development of the maps delineating the proposed new attendance boundaries. These criteria are as follows: * * * That the concept of neighborhood schools be adhered to in the revision of the attendance areas, but that non-contiguous attendance areas be allowed where necessary to achieve the desired racial composition. That natural boundaries be used to define attendance areas insofar as it is possible, avoiding duplicate transportation service on individual roadways. That the minority enrollment in any school be not more than 10 percent above or 10 percent below the percent of minority enrollment in that school level in the county as a whole, excluding Chaires, Concord, Fort Braden and Woodville Elementary Schools. That rising 5th, 8th and 12th grade students, on request, be permitted to continue in attendance if their resi- dence is placed in another school attendance area, with any needed transportation being provided by the parent and not the School Board (an exception to this rule should be made for students whose school of atten- dance was changed by the School Board in August, 1980, and transportation be provided at district expense in the event that the attendance areas affecting them are changed this year and the parents desire to have their children continue to attend the school they are attending in 1980-81). That the transportation needed to accomplish the desired racial compo- sition of each school be provided in as efficient and cost effective manner as possible, consistent with Florida Laws and Regulations, and School Board policy on hazardous areas. (Emphasis added). There are four high schools in Leon County: Leon, Godby, Rickards and Lincoln. Enrollment figures for the four high schools, as of April 8, 1981, are as follows: Leon, 1,690; Godby, 1,430; Lincoln, 1,664; and Rickards, 928. White students attending each of the four high schools comprise the following percentages of the total student body: Leon, 78 percent; Godby, 64 percent; Lincoln, 73 percent; and Rickards, 49 percent. The recommended capacities for the high schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Leon, 1,644; Godby, 1,556; Lincoln, 1,704; and Rickards, 1,465. In designing the proposed attendance boundaries for the 1981-82 school year, the School Board's consultant used a recommended enrollment figure supplied to him by the School Board staff. This recommended enrollment figure was not the same as the physical plant capacity figure. These recommended enrollment figures were, however, closely related to plant capacities, any differences between the two figures being reflective of various other program considerations. The most reliable prediction of future enrollments at the various high schools, which takes into account the estimated effect of grandfathering under the proposed amendments, reveals that for the first three years in which the proposed school boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various high schools. In addition, under the proposed zone changes, the racial composition of the student populations at each of the four high schools is projected to be within the 10 percent criteria established by the School Board by March of 1984. Rickards is the only high school in Leon County which does not presently meet the plus-or- minus 10 percent racial composition criteria. However, as indicated above, according to the School Board's projections, Rickards should meet that criteria during the 1983-84 school year. The greater number of students assigned to Rickards under the proposed zoning changes will make use of available and currently unused space, and, because of increased student enrollment, the diversity of course offerings should also increase. This is so because the amount of funds allocated to a given school is directly related to the number of students enrolled. Thus, for an under-enrolled school such as Rickards, fewer funds are generated under the statewide funding formula for that facility, which, in turn, may result in fewer programs being offered to students. There are, in fact, some courses not presently offered at Rickards that are available in other county high schools, due, at least in part, to under-enrollment at Rickards. The record in this proceeding does not establish with absolute certainty the total number of students either eligible for or expected to exercise the grandfathering option for the 1981-82 school year. However, a poll conducted by the School Board indicates that from 90 percent to 100 percent of students eligible for grandfathering will exercise that option, and estimates of potential school enrollments are partially based on that assumption. In fact, all student petitioners in this proceeding eligible for grandfathering testified that they would take advantage of that option. The reasons for this choice generally dealt with current school activities and friendships, and was consistent with the policy expressed by the School Board "to preserve educational continuity." The economic impact of the grandfathering provision on parents required to furnish transportation as a result of electing that option was not addressed quantitatively in the School Board's Economic Impact Statement. With regard to this cost factor, the Economic Impact Statement provided that: Current Board policy provides that bus transportation will be provided by the district if the residence of the parent is more than two miles from the assigned school. None of the proposed rule amendments modify this basic policy; however, the policy changes in 3.02 allow for the "grandfather- ing" of students in certain grade levels subject to the requirement that the parents provide all necessary transportation. To the extent that a parent voluntarily chooses to assume that responsibility, that parent may incur associated costs such as gas and oil. There is no indication in this record that the School Board considered the potential cost and feasibility of providing transportation at School Board expense to those students choosing the grandfather option who live two or more miles from the "grandfathered" school. Testimony at the final hearing estimated transportation costs of $367.20 based upon an average driving distance between a student's home and school of 5.1 miles (based on the length of the average bus route), full attendance for the full 180 student school days, and a 20 cents- per-mile cost, which is the current state reimbursement rate for travel by automobile. Naturally, actual transportation costs would vary substantially, depending upon the type of vehicle driven, the number of students transported, the student's actual attendance pattern, carpooling, travel routes, and other associated factors. The parents' responsibility to assume these transportation costs in the event of electing tee grandfathering option is pointed out both in the rule advertisements and the Economic Impact Statement. The School Board has other existing policies which allow a student to attend a school different from that to which he is assigned based upon the location of his residence. These include the School Board's majority/minority transfer policy and instances in which a student requests to attend a special program at another school which is not available at his assigned school. In all such cases, the School Board requires that the student or his parents provide transportation at their own expense. The Economic Impact Statement prepared by the School Board in conjunction with the rule adoption process was based upon materials developed by the School Board staff on impact costs associated with rezoning in their areas of administrative responsibility. The Economic Impact Statement itself was based ". . . upon the premise that only those incremental, out-of-pocket costs attributable to the policy revision and rezoning process are included." Previously committed, or "sunk," costs such as salaries and related employee benefits were explicitly excluded from the analysis, although such costs were significant since the rezoning process absorbed a great deal of staff time. Similarly, "opportunity" costs, in the form of benefits foregone by directing district resources to rezoning rather than other goals were specifically excluded from consideration in the Economic Impact Statement. These base assumptions were described in the Economic Impact Statement itself. Petitioners, Joseph and Piercie Ehrlich, reside in Leon County, Florida, with their two daughters, Stephanie and Betty, who presently attend Lincoln High School. Under the proposed rezoning plan, the Ehrlichs' daughters would be required to attend Rickards High School, unless they choose the grandfather option in order to remain at Lincoln High School. Lincoln High School is located 1.58 miles from the Ehrlich home, and it is approximately 5 miles to Rickards High School from their residence. In the event that the proposed amendments to the school attendance zones are adopted, both of the Ehrlichs' daughters testified that they will exercise the grandfather option in order to continue to attend Lincoln High School. Petitioners, Robert and Joni McDermott, reside in Leon County, Florida, with their daughter, Dana, who is presently a student at Lincoln High School. The McDermotts' daughter will be required to attend Rickards High School, unless, as she testified, she exercises the grandfather option, should the proposed school attendance zones be adopted. The McDermott residence is located 2 miles from Lincoln High School, and approximately 3.5 to 4 miles from Rickards High School. Curt and Linda McKenzie reside in Leon County, Florida, with their daughter, Kris, who is a student at Lincoln High School. If the proposed rezoning amendments are adopted, Kris will be required to attend Rickards High School, unless she chooses to remain at Lincoln under the grand fathering provision. The McKenzie residence is located 1.6 miles from Lincoln High School, and approximately 4 miles from Rickards. A. P. and Judy Floyd reside in Leon County, Florida, with their child, Tracy, who would be entering the 9th grade at Lincoln High School, absent the proposed amendments to the school attendance zones. However, under the proposed plan, Tracy will be required to attend Rickards High School for the 1981-82 school year. Lincoln High School is located 1.6 miles from the Floyd residence, and Rickards High School is located 4.4 miles from their home. Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been adopted in this Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact Allan Bonilla, currently Principal of Riviera Junior High School, was one of at least two assistant principals who attempted to work with Venus Tara Rodriguez during her 7th grade experience there in the 1984-1985 regular school year. He has been employed four years at that facility. Immediately prior to the winter vacation (commonly known as the extended Christmas holidays), on December 20, 1984, Venus left the campus without prior permission, this activity resulted in a two-day indoor suspension. In February, 1985, she received a three-day indoor suspension as the result of tardiness which culminated in an outdoor suspension the same month because her behavior at the three-day indoor suspension was so disruptive that it was deemed ineffective for her and the other students. In March, 1985, her rude and disruptive classroom behavior resulted in two indoor suspensions. In April 1985, as a result of her refusal to work during the last indoor suspension, she was assigned an outdoor suspension. Mr. Bonilla did not work with Venus as regularly as another assistant principal who was not available for hearing, but he expressed personal knowledge of the foregoing events and had interacted with Venus on several occasions for being out of class and boisterous. His assessment was that Venus could do the work required of her but that her behavior was so disruptive in the classroom that at the conclusion of the regular 1984-1985 school year she was failing two out of six subjects and was doing approximately "D" work in the rest. He agreed with the decision to assign her to an alternative school program, which decision was made because of Venus' need of individual attention and smaller class due to her habit of "acting out" in large groups. Venus' parents were contacted concerning each suspension. Mr. Bonilla testified that Venus has successfully finished 7th grade during the 1985 summer school session at GRE Lee opportunity School and he has received notice she will be reassigned and enrolled at Riviera Junior High School for the 1985-1986 school year commencing in September 1985.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Venus Tara Rodriguez to Riviera Junior High School. DONE AND ORDERED this 29th day of August, 1985, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of August, 1985. COPIES FURNISHED: Phyllis O. Douglas, Esquire 1410 N. E. Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire Dade County Public Schools Board Administration Building 1410 N. E. Second Avenue Miami, Florida 33132 Mark A. Valentine, Esquire 3050 Biscayne Blvd. Suite 800 Miami, Florida 33137-4198 Ms. Wilhelmina A. Rodriguez 4110 S. W. 104th Place Miami, Florida 33165 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1510 N. E. Second Avenue Miami, Florida 33132
Findings Of Fact Respondent, Carolyn T. Smith, holds teaching certificate number 105319, issued by the State of Florida, Department of Education. Respondent is certified to teach French and Spanish through the junior college level. Respondent has been employed as a French and Spanish teacher by Petitioner, School Board of Dade County (School Board) since 1961. From 1961 to 1966, Respondent taught at Mays Junior High School, and from 1966 through 1976 at Southwest Miami Senior High School. During the 1976-77 and 1977-78 school years Respondent was on a leave of absence. In 1978 Respondent resumed her teaching career and was assigned to Palmetto Senior High School (Palmetto). Respondent taught at Palmetto until her suspension from teaching at the conclusion of the 1982-83 school year. Respondent's annual evaluations extending from the 1961-62 school year through the 1978-79 school year were acceptable. It is Respondent's performance from the 1979-80 through 1982-83 school years which is at issue in these proceedings. During the 1979-80 school year the normal work day at Palmetto was 7:20 a.m. to 2:40 p.m. Due to personal hardship, however, Respondent was granted permission to alter her schedule to an 8:10 a.m. to 3:30 p.m. work day. Despite the accommodation afforded Respondent, on at least seven occasions between September 7, 1979 and February 21, 1980, Respondent was from five minutes to one hour and ten minutes late to work. Not only was Respondent late to her first class, she occasionally missed the class entirely as well as the beginning of her next class. On February 21, 1980 Respondent was formally observed by Elaine Kenzel, assistant principal at Palmetto. Ms. Kenzel's observation specifically apprised Respondent that she had been rated unacceptable in professional responsibility because of her tardiness. Ms. Kenzel's observation noted several other areas of performance in which Respondent was unacceptable or needed improvement. These matters were reviewed at conferences with Respondent on February 26 and 28, 1980. Portions of the conferences were attended by Francis Wargo, the principal at Palmetto. Among the topics broached at the conferences were Respondent's failure to properly maintain her grade book, her failure to follow proper grading procedures, her failure to properly assess each student's progress, her failure to use assessment techniques which motivate and enable students to learn, and lack of teacher-student rapport. Respondent's grade book for the 1979-80 school year was messy and, in large measure, incomprehensible to anyone other than Respondent. The grade book failed to indicate the grading period, failed to specify the grade source, failed to weight the grades for various tasks, and was uncoded. It depicted a poor professional image and failed to fulfill its basic purpose--to enable students, parents, replacement teachers and other authorized persons to review a student's achievement. Despite repeated critiques, Respondent's grade books showed little improvement during her tenure at Palmetto. Ms. Kenzel also counseled Respondent about her obligation to maintain a representative sampling of each student's work in her student folders. These samples were necessary to assess student progress, and should include graded tests, homework, classwork and reports. At the time of Ms. Kenzel's observation, six months into the 1979-80 school year, there were few samples of any student's work. What did exist were, in large measure, short quizzes of a vocabulary nature. The student folders were inadequate to assess a student's progress. Finally, Ms. Kenzel critiqued Respondent's instructional technique. Ms. Kenzel suggested that Respondent's students should not be simply repeating lessons in rote fashion, but should be involved in a variety of activities. This would improve student attention and enthusiasm, which Ms. Kenzel perceived was lacking. Final examinations for the 1979-80 school year were scheduled to commence at 7:30 a.m., June 9, 1980. The scheduling of examinations required a rearrangement of the normal class schedule. Fifth period, which normally began at 1:30 p.m., was scheduled for 7:30 a.m. This change required that Respondent report at 7:20 a.m. on June 9, instead of 8:10 a.m. The examination schedule was published, and discussed with Respondent at a faculty meeting. On June 9, 1980, Respondent failed to report for work until 8:15 a.m., 45 minutes after her fifth period examination was scheduled to commence. Respondent's tardiness created a poor testing atmosphere and was a cause of anxiety and frustration for her students. Respondent offered no explanation for her tardiness. On June 11, 1980, a conference for the record was held between Mr. Wargo and Respondent. Respondent's tardiness of June 9, 1980 was discussed, and she was reminded that her work day for the next year would be the same as other teachers, 7:20 a.m.-2:40 p.m. Respondent was told that disciplinary action would be recommended if she failed to observe the prescribed working hours. Respondent was also reminded that school policy forbade a teacher to permit a student to hand-carry any part of an examination to the office for duplication. Respondent's annual evaluation for the 1979-80 school year recommended Respondent for continued employment, but found her unacceptable in classroom management and teacher-student relationships. It is worthy of note that this evaluation was dated June 2, 1980, and therefore predated Respondent's tardiness of June 9, 1980 and the conference for the record held June 11, 1980. The 1980- School Year The 1980-81 school year produced few observations of Respondent's performance. During that year a massive rebuilding project was underway and the administration's attention was directed toward that project and coping with the upheaval it caused. Normal classroom assignments and instruction were often disrupted. Teachers were often moved in and out of classrooms on one day's notice. Consequently, a great deal of latitude was afforded all teachers, and all were rated acceptable. That is not to say Respondent's performance was unblemished. The evidence established two definite areas of deficiency again were present. Respondent's tardiness to school and to class continued, and Respondent was again deficient in her student assessments. In November 1981, Ms. Mona Sowers visited Respondent's class to discuss the progress of her daughter, Carolyn Ann. She was concerned because conversations she had overheard between her daughter and friends left her with the impression they were not being tested. Respondent's grade book demonstrated that no testing or grades were present for Carolyn Ann. Although she inquired of her daughter's progress, Ms. Sowers was not shown any papers, or any other work, which would objectively demonstrate her daughter's progress. Respondent's sole explanation was that she tested her students orally. There were no grades in the grade book for oral or written tests, however, and Respondent was unable to recognize Ms. Sowers' daughter as one of her students until prompted by Ms. Sowers. For the 1981-82 school year, Respondent was again scheduled to work the normal 7:20 a.m. to 2:40 p.m. work day. On the first day of class Respondent was 20 minutes late. During much of the 1981-82 school year Respondent was tardy in arriving, from two to five occasions each week. Teacher tardiness impacts directly on the quantum of education offered the students. While first period is scheduled to begin at 7:30 a.m., adherence to the 7:20 a.m. arrival time is essential if the teacher is to be prepared to start class promptly. Otherwise, 5-10 minutes of class time are wasted by the teacher in organizing herself for that day's lesson. Promptness is particularly crucial for first period since daily announcements, which can occupy up to five minutes of the period, are given at that time. Since each class period is 55 minutes in duration, a loss of only 10 minutes per day equates to a loss of one day of instruction each week. Respondent's tardiness deprived her students of valuable instructional time, and left them unsupervised--a condition not helpful to their safety. Respondent was formally observed on six separate occasions during the 1981-82 school year. Mr. Wargo's observations of September 25, 1981 and November 5, 1982, and Ms. Kenzel's observation of October 12, 1981, rated Respondent overall acceptable, but each noted some areas of unacceptable performance. The deficiencies noted in these three observations were similar to those observed in preceding years. Respondent was unacceptable in classroom management, techniques of instruction, teacher-student relationships and professional responsibility. Respondent wasted up to 20 minutes of class time on extraneous matters, failed to establish or enforce classroom policies on decorum or procedure, and her instruction evidenced a lack of planning. Respondent's classroom was messy and disorganized. Her tardiness continued. Each of these observations was critiqued with Respondent and suggestions to improve her performance were made. She was advised to start classes promptly, establish classroom policies and enforce them, vary her methods of instruction, and visit other classes and observe other teachers' performance. Respondent was reminded that her contract work day was 7:20 a.m. to 2:40 p.m. On February 2, 1982, Mr. Wargo stopped two students leaving Respondent's room. He discovered they had been visiting other students in Respondent's classroom, and that she was unaware of their presence. Respondent was observed passing out papers during a movie, and her students were talking and walking about. This occasioned Respondent's next formal observation. On February 4-5, 1982, Mr. Wargo formally observed Respondent's classes. He rated her overall unacceptable, and unacceptable in the categories of preparation and planning, techniques of instruction, teacher-student relationships and professional responsibility. Apart from Respondent's continuing tardiness, which accounted for her unacceptable rating in professional responsibility, the gravamen of her unacceptable rating in the other areas was basically inadequate planning and variety. Respondent's class was dull, her voice a monotone. Students responded in rote fashion to Respondent's singular questions. There was no variety of instruction or student feedback. Mr. Wargo directed Respondent to use the prescribed lesson plan form that had been developed at Palmetto. It was his opinion that if Respondent prepared a detailed lesson plan her classroom management would improve, student confusion would be avoided, and a more stimulating and organized presentation achieved. On February 9, 1982 Mr. Wargo held a conference with Respondent, Ms. Kenzel and Ms. Patrylo, Respondent's department head, to discuss the unacceptable observation of February 4-5, 1982, the incident of February 2, 1982, and ways to improve Respondent's techniques of instruction. During the course of that meeting, Respondent was advised that Ms. Wally Lyshkov, foreign language supervisor for Dade County Schools, would observe her class on February 19, 1982. On February 19, 1982 Respondent was formally observed by Ms. Lyshkov. While she rated Respondent overall acceptable, Ms. Lyshkov was of the opinion that Respondent's presentation was "staged" for her benefit. Her opinion was formed as a result of student comments that they did not usually do what they were doing, and by the lack of smoothness that results when activities are routine. Although "staged," Respondent's presentation indicates she knows how to teach effectively if she chooses to do so. Respondent had a very detailed lesson plan for the day Ms. Lyshkov observed her. Ms. Lyshkov reviewed Respondent's prior plans and found them to be sketchy. She recommended that Respondent continue to formulate detailed lesson plans, since Respondent's success that day proved their effectiveness. Respondent's last formal observation for the 1981-82 school year occurred on March 2, 1982. Mr. Wargo observed her classes for periods 1 and 2, and Ms. Kenzel observed for a portion of the same classes. Respondent was rated overall acceptable. The results of these observations establish that Respondent is capable of presenting a good lesson when she chooses to prepare herself. The 1981-82 school year evidenced other indications of Respondent's disposition. She was late turning in emergency lesson plans, lesson plans, course outlines and grade sheets. She was late to departmental meetings and to teacher workdays. She occasionally left her classes unsupervised. Despite her previous warning, Respondent continued to permit students to hand-carry examinations to the xerox room for copying. In May 1982 Mr. Wargo issued Respondent a letter of reprimand for unprofessional conduct in calling a student "trash." During the 1982-83 school year Respondent was heard to call various students "cabbage head," "stupid," "dumb," "disgusting," "fools," and "disgusting little creature." On May 27, 1982 Mr. Wargo completed Respondent's annual evaluation and recommended her for continued employment. While Mr. Wargo rated Respondent unacceptable in teacher-student relationships, he was apparently satisfied that she was improving her other areas of deficiency. Subsequent to the annual evaluation a significant number of serious problems surfaced which reflected on Respondent's performance and which caused Mr. Wargo to seriously question his recommendation for continued employment. Respondent was absent, without satisfactory excuse or authorization, from school during the final examination period of June 14 through June 17, 1982. According to Respondent it was not until 2:00 p.m. the preceding Friday that she first learned she would have to take her son, a 12-year-old junior high school student, to Talladega College, Talladega, Alabama, to enroll him in a "Super Stars" summer program she had selected. According to Respondent, her husband could not take their son because he was "on call" at his work. Respondent's explanation for abandoning her obligations is unpersuasive. Respondent had at least four weeks' notice that her son had been accepted for the program. Ms. Patrylo, Respondent's department head, was at school the Friday before exams until 2:45-3:00 p.m. At no time during the preceding four weeks, or on the Friday preceding exams, did Respondent advise the administration or her department head that she would need to be absent that week. Instead, Respondent "fulfilled" her obligations by "informing" the principal's and assistant principal's secretaries late Friday afternoon that she would be absent and left her final examinations in the office. Ms. Patrylo did not become aware of Respondent's absence until the morning of June 14, 1982. During the course of administering the French I final examination to Respondent's first period class Ms. Patrylo discovered a number of significant problems which reflected adversely on Respondent's competence. Respondent's French I examination was a travesty. It was not a French I examination but a French II placement test the department had previously prepared to gauge at what level an incoming student should be placed. Respondent had simply taken a copy of the placement test and written "French I Final" on it. Respondent had been previously instructed that the examination was to be thorough and cover a significant amount of the year's course content. Essay questions were to be included. The French II placement test which Respondent proposed to give her students was composed of 47 questions; no essay questions - were included. Over 50 percent of the test, 25 questions, dealt with the passe' compose', yet that grammatical structure had not been extensively taught. Twenty-five percent of the examination dealt with verbs in the past tense, yet Respondent's students had not studied the past tense. Moreover, the test only required the "bubbling in" of answers on a computer card and did not require any writing. While two hours were allotted for the examination, this exam could be completed in ten minutes. Respondent's classroom was in disarray. Maps valued at $300 were abused. Respondent's closet contained flash cards, audio visual materials, food and other materials haphazardly thrown about. The room was completely disorganized. Respondent left no instructions for completing her book inventory. Consequently, 56 of her textbooks, valued at $11.00 each, were never accounted for. When school started the next year the class was short of books. On June 18, 1982, the last day of school, Respondent was due at school at 8:00 a.m. She failed to arrive until 8:45 a.m. Because of Respondent's tardiness three members of her department had to record grades for four of her classes in order to assure timely delivery of the grade sheets to the computer center. In working with Respondent's grade book to establish final grades, these teachers noted several shortcomings. Respondent's grade book contained no code for weighting of grades, it was impossible to tell which student absences were excused or unexcused, and on some lines two students' names appeared, rendering it impossible to decipher which grades belonged to which student. On June 23, 1982 a conference for the record was held to discuss the shortcomings of Respondent's performance, which were revealed during the last days of the school year. During this conference Mr. Wargo addressed Respondent's historical and current problems in record keeping, tardiness, following district, area and school policies, and classroom management. Mr. Wargo advised Respondent, by memorandum dated June 28, 1982, that he would not recommend Respondent for continued employment for the 1983-84 school year unless she showed marked improvement during the 1982-83 school year in the following areas: Accuracy and completeness of required record keeping. Strict adherence to contracted working hours of 7:20 a.m.-2:40 p.m. You will be expected to be in your classroom no later than 7:25 a.m. Compliance with district, area, and school level directives and policies. Improved classroom management procedures to insure the following: Classroom organized and neat; Attendance and tardy procedures enforced. Seating charts available and up-to-date. Rules and procedures consistently applied. Teacher-student relationships resulting in mutual respect. Consistent classroom performance resulting in continuous acceptable ratings. Respondent agreed to follow Mr. Wargo's suggestions to improve her performance, and to cooperate with the department chairperson. She stated that she would work very diligently the next year, and promised that Mr. Wargo would see considerable improvement. The observations, evaluations, conferences and suggestions made over the preceding three years, and Respondent's commitment to improve her performance and cooperation during the 1982-83 school year, proved futile. From September 1982 through April 1983, Respondent's teaching was observed on one or more occasions by her principal and assistant principal, an area director of the Dade County public schools, and the foreign language supervisor of the Dade County public schools. Each concurs that Respondent's performance was unacceptable in preparation and planning, classroom management, techniques of instruction, and assessment techniques; the same reasons she was found unacceptable in previous years. The root of Respondent's poor performance was indolence. Although proficient in her languages, Respondent demonstrated an unwillingness to change her methods or to plan, deliver and critique her lessons. Throughout the 1982-83 school year, despite numerous conferences, prescriptions, and requests, Respondent's lesson plans were submitted late and evidenced no continuity of purpose. At best, they were sketchy, disorganized and unduly repetitive. At worst, they were incomprehensible and illegible. Their content and appearance compel the conclusion they were hastily prepared to superficially comply with the requirement that she have lesson plans, but without any attention to their content or purpose. Respondent's classroom management was unacceptable throughout the school year. Frequently, less than one-half of available class time was devoted to foreign language instruction. Students were often unruly and undisciplined. They were permitted, without censure, to read novels, listen to radios, gossip, and apparently sleep during Respondent's classes. Respondent's inability or failure to manage her classroom was in large measure a product of her failure to prepare her lessons. Because of the low cognitive level at which Respondent taught, her classes were dull and conducive to student disruption. Her techniques of instruction were unacceptable. Respondent emphasized memorization, recall and drill on a purely audio-lingual basis and ignored the variety and repetitive reinforcement benefits that could be derived from reading and writing a foreign language. Respondent's assessment techniques were unacceptable. After three months into the 1982-83 school year, Respondent's grade book reflected only one written test and her student folders contained no assessment of her students' reading and writing skills. This situation did not improve over the course of the year. At no time during the course of the final hearing did Respondent concede she needed improvement in her techniques. The evidence, however, renders it painfully apparent that a serious problem did exist. Respondent testified that she practiced the audio- lingual method of foreign language instruction, which emphasizes listening and speaking, through level III of a foreign language. Repetition, she says, is essential. Accordingly, Respondent concludes, the presence of repetition in her lesson plans was essential, and the absence of many written tests in her grade book, or student papers reflecting reading and writing skills in the student folders, not unusual. Respondent's explanation ignores some very salient factors, to which she was privy. The Dade County curriculum requires that the four skills-- listening, speaking, reading and writing--be taught at each level of foreign language instruction. Further, Respondent had received unsatisfactory ratings in student assessments during the preceding three years because of her failure to properly test and her failure to document her students' progress in the student folders. By her own testimony Respondent concedes she did not teach the prescribed curriculum. Because of that failure she was unable to assess her students' skills in reading and writing since she had not developed them. By neglecting the reading and writing skills, Respondent not only deprived her students of the skills themselves, but also of the stimulation such variety in technique would have brought to her classroom, the reinforcement that would have been achieved by developing those skills, and the positive impact it would have had on class management. Respondent's attendance history during the 1982-83 school year was poor. As early as September 1982 Respondent was admonished by her principal for her failure to observe the 7:20 a.m. to 2:40 p.m work day, yet she subsequently arrived, on a number of occasions, after 7:30 a.m. During the second semester her tardiness took a new twist. During this time period, while Respondent would apparently arrive at school by the mandated 7:20 a.m. deadline, she would not open her classroom door until 7:30 a.m. While apparently in her classroom at 7:20 a.m., Respondent would not turn on any lights and, consequently, neither student nor administrator could assure her presence. Ms. Patrylo, Respondent's department head, asked Respondent to leave a light on in the room so that Respondent's students would know she was there, and so Ms. Patrylo would not have to be concerned about her absence and the need to unlock the door to admit Respondent's students. Respondent refused Ms. Patrylo's request because "she did not want to run up the electric bill for the Dade County schools." Respondent's response to Ms. Patrylo is not indicative of a cooperative attitude. It is, however, indicative of a plan to frustrate the administration in its attempt to monitor Respondent's compliance with the contracted work hours. The evidence establishes, however, that Respondent failed to adhere to her contracted work hours for the 1982-83 school year. The administration of Palmetto Senior High School, and the School Board, went to considerable lengths in the 1982-83 school year to rehabilitate Respondent. Their efforts were, however, met by little or no effort by Respondent to improve herself. Respondent asserts, rather incongruously since she acknowledges no imperfection in her teaching techniques, that the cause of her failure to improve was caused by the observations and prescriptions themselves and because she had four preparations that school year. Respondent's assertions are unpersuasive. At no time during the 1982-83 school year did Respondent render any such objections. The number of preparations Respondent had was not excessive. Respondent could have obviated the necessity of any prescriptions, and most observations, by abiding the commitment she had given Mr. Wargo at the close of the 1981-82 school year--to improve her performance in these same areas. In short, Respondent's attempt to excuse her "failures," because of the administration's statutorily and contractually mandated efforts to assist her, lacks substance. While occasional improvement in Respondent's performance was seen over the course of the 1982-83 school year, it was sporadic and short-lived. Despite counseling, prescriptions, and workshops, Respondent continued to perform at an unsatisfactory level in the same areas as previous years. It was the consensus of opinion of the professional educators and experts who observed Respondent's classroom performance that she repeatedly failed to teach effectively and faithfully as required by Rule 6Gx 13-4A-1.21V, School Board of Dade County, and failed to communicate with and relate to the children in her classroom to such an extent that they were deprived of a minimum educational experience. The evidence compels the same conclusion. Respondent's tardiness further deprived her students of the minimum educational experience to which they were entitled and her frequent absences from the classroom could have placed her students in physical jeopardy. At the conclusion of the 1982-83 school year Respondent was suspended from her position as a classroom teacher in the Dade County school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That: Petitioner, School Board of Dade County, enter a Final Order in Case No. 83-3067, sustaining Respondent's suspension from her employment, and dismissing Respondent as an employee of the School Board of Dade County; and Petitioner, Ralph D. Turlington, as Commisioner of Education, enter a Final Order in Case No. 84-0149 revoking the teacher's certificate of Respondent, Carolyn T. Smith, for two (2) years. DONE AND ENTERED this 2nd day of May, 1985, at Tallahassee Florida. WILLIAM J. KENDRICK 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 2nd day of May, 1985. COPIES FURNISHED: Madelyn P. Schere, Esquire Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Craig R. Wilson, Esquire The Law Building Suite 204 315 Third Street West Palm Beach, Florida 33401 Ellen L. Leesfield, Esquire DuFresne and Bradley, P.A. 2929 S.W. 3rd Avenue Miami, Florida 33129 Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1450 Northeast Second Avenue Miami, Florida 33132 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Karen Barr Wilde, Executive Director Education Practices Commission Department of Education Knott Building Tallahassee, Florida 32301
