The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Notice of Specific Charges.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, including Carol City Senior High School (Carol City). At all times material to the instant case, Mary Henry has been the principal of Carol City and James Meehan has been an assistant principal at the school. At all times material to the instant case, Respondent was a language arts teacher at Carol City holding an annual contract. Respondent began teaching at Carol City in September of 1997. She remained at the school until February of 2000. In accordance with the School Board's Teacher Assessment and Development System (TADS), which it developed in concert with the United Teachers of Dade, the collective bargaining representative of the School Board's teachers, school principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe required remedial activities designed to improve the teacher's performance. The categories of classroom performance that are assessed are "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," "teacher-student relationships," and "assessment techniques." Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom. TADS was modified following the 1997 session of the Florida Legislature to provide for a 90-day "performance probation period" for annual contract and professional service contract teachers determined to be performing unsatisfactorily. The modification was set forth in a Memorandum of Understanding between the School Board and the United Teachers of Dade, which provided, in pertinent part, as follows: Upon identification of any deficiency, either through the observation/assessment process OR a Category VII infraction, the PRINCIPAL MUST, within 10 days conduct a conference-for-the-record which address: results of the observation/assessment, or Category VII infraction, stipulations of the Performance Probation (90 calendar days, excluding school holidays and vacations), which begins upon the employee's receipt of the written plan of assistance (prescription), the plan of assistance and professional development opportunities to help correct documented deficiencies within a specified period of time, future required observations/assessments, and possible employment actions. A minimum of two observations/assessments must be conducted subsequent to the completion of the initial prescriptive timelines and during the Performance Probation. The annual evaluation decision will be based upon the result of the last observation/assessment . . . . Within 14 calendar days after the close of the Performance Probation, the evaluator (principal) must assess whether the performance deficiencies have been corrected and forward a recommendation to the Superintendent.- Within 14 calendar days after receiving the evaluator's recommendation, the Superintendent must notify the employee in writing whether the performance deficiencies have been satisfactorily corrected and whether the Superintendent will recommend that the School Board continue or terminate his or her employment contract. If the employee wishes to contest the Superintendent's recommendation, the employee must, within 15 calendar days after receipt of the Superintendent's recommendation, submit a written request for a hearing. . . . On October 21, 1999, Respondent was formally observed in her classroom by James Meehan, an assistant principal at Carol City and a certified TADS observer. Mr. Meehan rated Respondent deficient in "preparation and planning" (Category I.B.2.); "knowledge of subject matter" (Category II.A.2.); "classroom management" (Categories III. B.2. and 4. and III.C.1. and 4.); and "techniques of instruction" (Categories IV.H.1. and 2.). These unsatisfactory ratings were justified. Following Mr. Meehan's October 21, 1999, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (First Report). The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson plan prepared by the instructor was not followed. The stated objective in the lesson plan was: "Student will demonstrate test taking skills and ability to visualize descriptive language; FCAT worksheet (reading comprehension)." The activities used to accomplish these objectives were stated as follows: "Test on literature; pictures of a descriptive passage with language being discussed included; reading comprehension worksheets." The actual lesson consisted of: (1) quiz on run-on sentences; (2) the introduction of the elements of a short story by the instructor; (3) the reading of an essay which the instructor mistakenly identified as a short story; and (4) students' written responses to "Questions for Study and Discussion," after the reading of the essay. There was no demonstration by students of their ability to visualize descriptive language, no FCAT reading comprehension worksheet, and no literature test." PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairman, on each Friday, for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.A.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor attempted to teach the elements of a short story by applying them to a work by Maya Angelou which is described in the handout given to students, as a "self-contained section from her first autobiography," and later on as an "essay" in the "Questions for Study and Discussion." The instructor continuously referred to this literary work as a short story; however, it is a work of non-fiction. The instructor erroneously applied the elements of a short story such as exposition complication, conflict, climax, and denouement to this non- fiction literature. This work was an example of a descriptive essay, not a short story. PRESCRIPTION PLAN ACTIVITIES The instructor will prepare a set of detailed lesson plans, on the form designated by the assessor, and submit a copy to Ms. Ann Howard, Language Arts Chairperson, on each Friday, for review and discussion, prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.A.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not utilize non-verbal techniques to redirect off-task learners. Off-task behavior was frequent and persistent throughout the class period. Of the 30 students present, 20 were off-task for significant period[s] of time. Students in A1, B1, C2, C4, D1, D2, G1, and G4 slept some 20 minutes or more. The students in F1 and F2 continuously passed notes to one another while the student in E4 read a sports catalog for at least 30 minutes. At one point, the students in A4 and G3 walked to the front of the room in back of the instructor, exchanged notes, and returned to their seats. The student in B5 combed the hair of the student in B4 and afterwards massaged his hands. The student in A1, when not sleeping, played with her hair. Other students stared into space or otherwise wasted time. The instructor never attempted to use non-verbal techniques such as eye contact, silence, clapping, or proximity to redirect these off-task behaviors. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, designated by the assessor, to record how he/she has successfully used non-verbal techniques to deal with off-task student behavior. The instructor will type a summary of the interview and develop a plan, incorporating some of the suggestions, to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Julia Fehr, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Often times during the period, 50 to 70 percent of the students were off-task. Students were engaged in activities not associated with the lesson. They daydreamed, drew pictures, wrote notes, slept, or were distracted in other ways. The instructor made an attempt to verbally redirect some students who were off-task; however, they were not revisited and the off-task behavior continued when the instructor directed her attention elsewhere. The student in E4 was told to put his catalog away. He then put his head down on his desk instead. He was not revisited. The students in A1 and F1 were told to do their work and move their desks closer to the front of the room. When they did so, they continued their off-task behavior, F1 by throwing papers across the room into the garbage pail and gyrating to imaginary music, A1 by continuously getting up from her desk and fiddling with her hair. Neither student was revisited. Verbal and non- verbal techniques to maintain the attention of redirected learners were not employed by this instructor. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, to record how he/she has successfully use[d] verbal and non- verbal techniques to maintain the attention of redirected learners. The instructor will type a summary of this interview and develop a plan, incorporating some of the suggestions presented, to reduce the frequency of recurring off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably resigned to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior had not been established or were not clear to learners. Of the 30 students present, 14 arrived late. None of these students was asked for an explanation. The only reaction from the instructor was, "Do you see how aggravating this is?" When students had to sharpen pencils, they left their seats and walked across the room. Four students were observed leaving their seats to sharpen pencils while the instructor was lecturing or reading to the class. When disposing of garbage, several students threw their papers across the room. The student in F1 and another student in row G played basketball with balled up paper and the trash can. When responding to questions, students would blurt out answers. There was no systematic method established for asking or answering questions. At the end of the period, before the bell, 11 students left their seats and began walking around the room. One student left his seat and walked across desks to get to the side of the room. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor, chosen by the assessor, for suggestions on how to deal with inappropriate student behavior during class. She will type a summary of each interview. The material will be submitted to Mr. Meehan for review and discussion. Mr. Meehan and Pamela Salkey, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly or appropriately by this instructor. During the quiz, students in A3, A4, and F1 continuously looked at other students' papers, while students in A5 and B4 conversed. These behaviors continued without the instructor identifying or responding to the students involved. At another point during the lesson, the student in B5 yelled, "I don't give a fuck," loud enough to be heard across the room. There was no response from the instructor. The magnitude and frequency of talking that occurred during the lesson made it extremely difficult for students to hear what the teacher was saying and for students to complete their assignments. During the last 35 minutes of the class when students were assigned to respond to 4 questions dealing with the reading selection, only 8 of 30 students completed the assignment, 12 handed in no paper at all, while 7 did 1 or 2 of the questions. PRESCRIPTION PLAN ACTIVITIES The instructor will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a reward system to promote and maintain appropriate student behavior in class. The instructor will submit the plan to Mr. Meehan for review and discussion prior to implementation. Mr. Meehan, Ms. Howard, and Ms. Theodora Woltch, a language arts teacher at Carol City, were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.1., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Areas of confusion were not identified before learners asked questions. During the quiz on run-on sentences, students were confused as to what to do. Many students were puzzled as to why they could not use coordinating conjunctions or another method of connecting run-on sentences, rather than being restricted to writing two separate sentences as instructed by the teacher. Confusion was exacerbated by an explanation on the reverse side of the test which stated, "In fact, it is often better to join them than to put them into separate sentences." When students asked if they could use another method, the instructor said they could not, but would not be incorrect if they did. Students remained puzzled as to what was acceptable. These potential areas of confusion with the run-on sentence should have been anticipated by the instructor, but were not. PRESCRIPTION PLAN ACTIVITIES The instructor will construct detailed lesson plans each week and discuss potential areas of confusion with her department chairperson on the Friday prior to implementation. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.1. The First Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.H.2., and directed Respondent to engage in and complete by November 22, 1999, the following "prescription plan activities" reasonably designed to help Respondent improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION When students were assigned to write the answers to "Questions for Study and Discussion," several students asked if they could work in groups. The instructor responded that they could work in pairs. She then changed her mind and said they had to work individually. Afterwards, she again said they could work in pairs. Students were puzzled as to what to do. Students were further confused by what question they were assigned. Initially, the instructor assigned question 1, then 2 through 5, and later on told a student, "Do number 2 and I'll be happy." Again, many students were confused. When the instructor assigned students to grade each other's quiz papers, students did not understand what was correct, what was minus 5, and what was minus 10. The student in F3 stated that he was confused and the student in E3 claimed, "I don't understand." The instructor made no attempt to clarify these misunderstandings. PRESCRIPTION PLAN ACTIVITIES The instructor will interview one English instructor chosen by the assessor, regarding how he/she approaches the organization [of] his/her lessons on a daily, weekly, and long term basis. The instructor will type a summary of this interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the First Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.H.2. On October 28, 1999, Ms. Henry held a conference- for-the-record with Respondent to discuss the contents of the First Report, a copy of which was provided to Respondent. Also present were Mr. Meehan and United Teachers of Dade representatives. An explanation of the deficiencies found by Mr. Meehan was given. In addition, Respondent was advised of the commencement (that day, October 28, 1999) of the 90-day "performance probation period" and warned that "failure to demonstrate remediation of [her] deficiencies may result in termination of [her] employment contract" and that failure to complete "prescription plan activities" by the November 22, 1999, deadline would "result in an unacceptable rating on the Professional Responsibilities Component of TADS." On November 17, 1999, Ms. Henry held another conference-for-the-record with Respondent. Also present were United Teachers of Dade representatives. The purpose of the conference was to discuss Ms. Henry's findings concerning an incident that had occurred in Respondent's classroom during her fifth period class on October 5, 1999. Ms. Henry had determined, based upon statements from students, that Respondent, during this fifth period class, had "inappropriately disciplined a student by grabbing her by the arm to remove her from the classroom." 1/ At the conference, Ms. Henry advised Respondent of the determination she had made and admonished Respondent accordingly. Among other things, she told Respondent that she should seek the assistance of an administrator or security monitor if she had a disruptive student in her classroom. The following day, November 18, 1999, Respondent received a letter of reprimand from Ms. Henry, which read as follows: On October 5, 1999, you inappropriately disciplined a student while instructing your language arts class. You violated Rule 6Gx12-5D-1.07- Corporal Punishment and 6Gx13-5D-1.08- Maintenance of Appropriate Student Behavior. It is your responsibility as a classroom teacher to maintain control and discipline of students. However, it is imperative that you follow school and Miami-Dade County School Board rules in doing so. Rules governing student discipline are outlined in the Code of Student Conduct, Board Rule 6Gx13-5D-1.07 and the Faculty Handbook- Item 9 - Classroom Management, Item 16- Corporal Punishment Policy, and Item 85- Supervision of Students. You are immediately directed to refrain from using any physical means to manage student behavior. Your are also immediately directed to implement the appropriate procedures for dealing with inappropriate student behavior as stipulated in the above documents. The infraction, Case Number E-02750, was substantiated by students' statements. You are hereby officially reprimanded for violating your professional contractual responsibilities in that you grabbed the student's arm to remove her from class. You are directed to refrain from using inappropriate procedures in the performance of your assigned duties. You are hereby directed to implement approved procedures in the performance of your assigned duties. Any recurrences of the above infraction will result in further disciplinary action. The reprimand was signed and dated (November 18, 1999) by Respondent. Respondent failed to complete the "prescription plan activities" set forth in the First Report by the November 22, 1999, deadline. On December 8, 1999, Respondent was formally observed in her classroom by Ms. Henry, who, like Mr. Meehan, is a certified TADS observer. Ms. Henry rated Respondent deficient in "knowledge of subject matter" (Categories II.B.2. and 3.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1.,3., and 4.); "techniques of instruction" (Categories IV.A.2. and 3. and F.1. and 3.); and "assessment techniques" (Categories VI.A.2., 3., and 4. and B.2. and 3.). These unsatisfactory ratings were justified. Following Ms. Henry's December 8, 1999, observation, she completed a "record of observed deficiencies/prescription for performance improvement" (Second Report), a copy of which was provided to Respondent. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.2., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The sequence of information presented was not logical. The teacher's lesson for the entire two hour block involved a test on vocabulary words, a bell shaped curve drawn on the chalkboard with the words "exposition," "climax" and "resatution (resolution)" around it, and an FCAT assignment for students to answer questions from pages 48, 49, and 50. Before one activity was completed, the teacher moved on to the next and then back again. This vacillation between activities was continuous throughout the lesson. At no point did the teacher attempt to establish a connection between elements of the lesson. There was no meaningful framework established by the teacher in which students could relate one component of the lesson with another. PRESCRIPTION PLAN ACTIVITIES The teacher will observe Ms Hayes' class during period 4 and summarize the instructional activities, techniques and strategies used by the teacher. The teacher must submit her observation in typed form to Ms. Henry, the principal. Elois Hayes, a language arts instructor at Carol City, and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to help to improve her performance in Category II.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.3, and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher failed to select or incorporate important dimensions and applications of the subject to make the lesson meaningful to learners. Without preparation or warning the teacher began to call loudly four words to students to write down. After much student confusion about the vocabulary words, the teacher then drew a bell shaped curve on the board and asked students to read a story and write down the exposition, climax, and resolution. Shortly after assigning this activity, the teacher wrote another assignment on the board and instructed students to answer questions from the assigned pages. The classroom activities required only copying answers and writing responses to questions on paper. At no time did the teacher provide examples or explanations nor did she attempt to engage the students in any meaningful or relevant activities. The lesson presented by the teacher demonstrates limited knowledge by the teacher in selecting activities that required higher order thinking skills such as reasoning, synthesis, comparison, or evaluation. PRESCRIPTION PLAN ACTIVITIES The teacher must plan and present lessons on different cognitive levels beginning with information that is knowledge based and extends to the highest level which is evaluation. All lessons should be introduced, presented on two or more cognitive levels and summarized by the teacher. The teacher must prepare appropriate lesson plans which must be submitted and discussed with Ms. Henry, the principal. Ms. Henry was listed in the Second Report as a "recommended resource" Respondent could draw upon to improve her performance in Category II.B.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category II.B.4., and directed Respondent to engage in and complete, "weekly on Fridays," from December 17, 1999, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Subject matter was not presented at more than one cognitive level. The entire lesson was presented on the knowledge level. The instructional activities were limited to copying from the chalkboard. To entice students to copy or write assignment, the teacher instructed the class that each student would get three A's for the assignments. There were no other techniques used to encourage higher order thinking skills. PRESCRIPTION PLAN ACTIVITIES The teacher must meet with her department chairperson and media specialist to review lesson plan objectives, activities and supplemental materials that incorporate higher levels of reasoning in her lesson plans. The teacher must submit and discuss her lesson plans with Ms. Henry on a weekly basis. Ms. Henry, Ms. Howard, and Elaine VanNostrand, a media specialist at Carol City, were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category II.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.2., and directed Respondent to engage in and complete by January 6, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were constant unnecessary delays and disorderly behavior by both the teacher and students. The teacher began class by calling out vocabulary words during which time she stopped several times to threaten students about their behavior and about not taking the vocabulary test. She repeatedly told students, "Go to the office and get your class changed, if you don't want to be in here." Students talked loudly, moved freely around the classroom and yelled out answers to the vocabulary test. Approximately 9 to 12 students refused to do anything. Confusion resulted from the lack of clear directives being provided by the teacher. Time was wasted when the teacher argued with students, repeatedly yelled out the same vocabulary words to students, and passed out literature books to individual students who asked in confusion, "What words? What page? What are we doing? What story are we supposed to read? I don't know what you are talking about." So much time was wasted that the entire class became chaotic and neither teaching nor learning occurred. Approximately 65 to 75 minutes of instructional time was lost to unnecessary delays. PRESCRIPTION PLAN ACTIVITIES The instructor will invite her department chairperson to observe her class. During that time the visitor is to record the time the instructor spends on various activities while in class. Using the data, the instructor will then analyze her instruction on the basis of how much time she spends on instructional versus noninstructional activities. Once that information is known, the instructor will develop strategies to reduce her percentage of noninstructional time while in class. The instructor will type a summary of the results of this exercise. She will submit the material to Ms. Henry for review and discussion. Ms. Howard and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by January 5, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the allocated time period. The lesson attempted by the teacher ended at 1:40 p.m. while the students continued to do whatever they chose to do until 2:30 p.m., which was the time the class was scheduled to end. There was drumming and dancing, students playing church, students walking and socializing individually and in groups, hair combing, 4 to 5 students sleeping at various times and students who just took a break from misbehaving. Their teacher made no attempt to regain control of the classroom or to continue with the instructional activities. Instruction stopped 40 minutes before the scheduled end of the class. PRESCRIPTION PLAN ACTIVITIES The teacher must develop a seating chart for each class and use the seating chart to help maintain classroom management. The teacher must also make parental contacts and keep a log of all contacts made or attempted. The seating chart and parent contact log must be submitted to Ms. Henry for review and discussion. "Seating Chart," "Parental Contact Log," Student Service Staff," and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by January 8, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use non-verbal techniques to redirect off-task learners. Twenty-three students were present during the lesson. Of that number, 19 students in the classroom exhibited constant off-task behavior that lasted throughout the class period. Students were constantly observed walking around the classroom, drumming on desks, combing their hair, playing with the television, yelling, singing and dancing. The entire class was in a state of frenzy. The teacher did not use non-verbal techniques such as proximity, clapping or facial expressions, to redirect students to the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record the number of times she identifies and responds to off-task behavior. The teacher will also analyze her instruction and lesson plans to devise a strategy to significantly reduce the frequency of off-task behavior observed in her classroom. The teacher will submit her seating charts and strategy to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by January 4, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use techniques to maintain the attention of learners who have been redirected. Constant and persistent off-task behavior was noted in this teacher's classroom. Students were observed talking, walking around the room, sleeping, singing, drumming on desks, dancing and playing with the television. Although the teacher yelled our commands and threats for behavior to cease, the behavior reappeared quickly once the teacher's attention was redirected to someone or something else. At 1:40 p.m. the teacher seemed defeated. She sat at her desk and attempted to address the assignments with students who were standing around her desk amidst total confusion. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will submit the seating charts with the recorded instances of misbehavior to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by January 13, 2000, the following "prescription plan activities" reasonably designed help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students exhibited persistent inappropriate behavior during the lesson such that it was obvious that expectations about behavior were not established or clear to the students. Throughout the class period, 80% of the class were talking, walking around the room, yelling at other students or the teacher, singing, drumming on desks, dancing, combing hair, or turning on the television. The noise level was so high that the teacher had to yell to make a point. At one time the teacher walked over to the observer and said, "I guess you are happy. This is what happens when you bribe students in order to fire me." The teacher also advised students by stating, "Find a spot on the wall and talk to it and don't ask me anything." Other than yelling out commands to sit down, be quiet or threats to get out of the class, recurrent inappropriate behaviors were allowed to occur without consequences. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. The assertive discipline plan will be submitted to Ms. Henry for review and discussion prior to implementation. Ms. Henry and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.3., and directed Respondent to engage in and complete by January 10, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not identified and dealt with quickly by this teacher. Students were observed in various acts of off- task behaviors. The behaviors would sometimes persist until students became tired of that misbehavior and moved to another inappropriate behavior. The teacher appeared angry and overwhelmed with students' misbehavior. Off-task behavior was not dealt with quickly. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave and the resulting consequences imposed by the teacher. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The charts and the resulting analysis will be submitted to Ms. Henry for review and discussion. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by January 7, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Learners who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this teacher. Students were observed throughout the class period engaging in inappropriate behaviors. In certain instances, the teacher responded in anger yelling out a command to sit down or stop talking. As soon as the teacher's attention was diverted to another off-task behavior or question, the behavior challenged earlier would return. No consequences were ever imposed by the teacher when she addressed any particular behavior. PRESCRIPTION PLAN ACTIVITIES Using outside resources, the teacher will identify and describe, at least two additional behavior management techniques which have been shown to be effective in the classroom. Using the information obtained, the teacher will devise a written plan to significantly reduce the frequency of inappropriate behavior in [her] classes. The teacher will submit this information to Ms. Henry for review and discussion prior to implementation. "Textbook resource materials," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.2., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructional methods employed by this teacher were not appropriate for the needs and abilities of the learners in the classroom. The teacher began the class by saying, "You are going to have a vocabulary test." Students were confused as to what vocabulary test they were to take, while some students stated that, "You never assigned us any words to study." After much confusion, the teacher yelled out four vocabulary words for students to write down. While students were copying vocabulary words from each other, the teacher hurriedly drew a bell curve on the chalkboard, wrote three words around the bell curve and asked students to find a sentence in the story that related to each of these words. Again, students informed the teacher that the class had not read the story. The teacher continued with this assignment by asking students to get a literature book. The teacher then began to vacillate between the vocabulary words and the bell curve relating to the story. Later, in the class period, the teacher wrote another assignment on the chalkboard which required students to answer question from the FCAT booklet. Students became frustrated, inattentive and disengaged with the lesson. PRESCRIPTION PLAN ACTIVITIES The lesson plans will reflect at least (3) different methods of delivering each lesson. The teacher will review the plans and methods with Mrs. Howard and Ms. Henry prior to their delivery. Ms. Henry and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The only materials used by the teacher were the chalkboard, textbook and FCAT workbooks. Supplemental materials such as handouts, computer assisted instruction, textbook glossary of words or dictionary and/or sticky notes were not employed to bring variety to the lesson and stimulate students' interest. The off-task behaviors manifested by students were the consequences of the teacher's failure to use a variety of materials. The instructor's limited use of basic curriculum materials was not appropriate for the needs and abilities of the learners in this class. PRESCRIPTION PLAN ACTIVITIES The instructor will meet with her department chairperson and the director of the Media Center in order to obtain assistance in finding supplementary materials that may assist her in her endeavors to instruct her English classes. The instructor will list the materials available and develop a plan to utilize some of these materials in her classes. The instructor will submit a copy of the list and the plan to Ms. Henry. The instructor will discuss the plan with Ms. Henry prior to implementation. Brenda Harrell, a media specialist at Carol City, Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.1., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not establish the necessary background for the lesson. She began the lesson by calling out vocabulary words. A majority of the students informed the teacher that they had not been assigned any vocabulary words for study. The next assignment required students to use a short story to respond in writing to the three words (exposition, climax and resolution) written around the bell shaped curve on the chalkboard. The teacher insisted the students had read the story. Students likewise indicated that they had not read the story because of an incident relating to the teacher's stolen purse on the day they should have read the story. Next, the teacher placed another assignment on the chalkboard from the FCAT booklet. It was apparent from the students' responses that there was no background or prerequisites for the lesson nor did the teacher facilitate students' understanding of the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher must prepare lesson plans that require more than student centered activities involving reading, writing, and copying answers from a textbook. The teacher must prepare lesson plans that are teacher/student centered and provide for the various levels of cognitive learning. She must also include activities that will motivate students to participate in the lesson. The lesson plans must be submitted to Ms. Henry prior to their implementation. "Lesson Plans," Ms. Henry, and Ms. Howard were listed as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.1 The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.F.3., and directed Respondent to engage in and complete by December 17, 1999, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher presented three different lesson components which were not appropriately sequenced during the class period. She began the lesson with four vocabulary words which [were] not related to any lesson. It appeared that the sole purpose of this exercise was to give the students a test. The next assignment was for students to find a sentence in the story that related to words written around a bell curve. Several students asked, "What story?" Other students informed the teacher that they never got to read the story because of her stolen purse. The teacher ignored the students' comments and proceeded with the assignment amidst confusion. In the last assignment, students were instructed to answer questions on certain pages from the FCAT booklet. Because of the lack of appropriate sequencing in the lesson components, students were unable to understand the lesson presented. PRESCRIPTION PLAN ACTIVITIES The teacher will include in her lesson plans the sequence in which the components of the lesson will be presented. The teacher will also include in her lesson plans at least three (3) different methods of delivering each lesson. The lesson plans will be submitted to Ms. Henry for review and discussion prior to implementation. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.F.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not solicit responses or demonstrations from students. Students were asked only to write their responses to vocabulary words, to write sentences [with] words listed on the bell shape[d] curve and to write answers to question[s] from the FCAT booklet. At no time did the instructor ask students for a verbal response nor did she ask them if they understood the lesson. PRESCRIPTION PLAN ACTIVITIES The teacher will solicit informal responses from individual students as well as assessing students in a group. The teacher must also assess student demonstrations of the instructional objectives. This assessment must be properly labeled and dated in the gradebook. A weekly review will be made by Ms. Henry. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.3., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Multiple levels of learning were not monitored. The teacher did not appear to monitor any level of learning. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least two (2) class activities each week that require[] multiple levels of assessment of students' performance. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.3. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION A review of the teachers' gradebook and students' folders revealed only two to five teacher graded assignments. There was no documented nor observed activities in which students evaluated their own or each others' performance. PRESCRIPTION PLAN ACTIVITIES The teacher will include at least one (1) class activity each week that requires students to assess their own classwork or the classwork of another student. The teacher will present the completed evaluations to Ms. Henry each Friday. "Students' Assessment Papers," Ms. Henry, and Ms. Howard were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by January 3, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The teacher did not use a variety of assessment techniques to assess students' performance. A review of the gradebook revealed that only two to four grades had been recorded since the beginning of the school year. A review of students' folders revealed only two to three papers filed with dates [of] September, 1999. During the observation period, students were only required by the teacher to provide written responses to assignments. Most students did not complete the assignments. Of the 23 students present only 3 submitted papers for the FCAT assignment while 6 did so for the reading assignment and 17 for the vocabulary quiz. The teacher made no attempt to assess students' progress other than collecting papers at the end of the class. There was no evidence in the gradebook or student folders of unit tests, projects, homework, etc. PRESCRIPTION PLAN ACTIVITIES The teacher will present to Ms. Henry on a weekly basis her gradebook and sampling of students' folders showing classwork and the teacher's assessment of that classwork. The teacher must also properly label grades in the gradebook according to the assignment and date. "Lesson Plans" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Second Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete "weekly on Friday," from January 3, 2000, through January 19, 2000, the following "prescription plan activities" reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION There were no summative assessments reflected in students' folders nor in the teacher's gradebook for the period of August 31 through December 8, 1999. There were only two to four grades recorded for her five classes during the above period. There were no unit test[s] with a variety of test items. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare a unit test which will include the following: 20 multiple choice question[s] 10 matching items 5 fill in the blank items 2 essay questions Submit to principal for review prior to testing of students. The "Handbook for Educators on Authentic Assessment Techniques" and Ms. Henry were listed in the Second Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. Respondent failed to timely complete the "prescription plan activities" set forth in the Second Report. On January 19, 2000, Ms. Henry presented Respondent with a memorandum advising Respondent that she was being "granted 24 hours to complete" these activities and that "[f]ailure to comply w[ould] result in disciplinary action." On January 25, 2000, Respondent was again formally observed in her classroom by Mr. Meehan. Mr. Meehan rated Respondent deficient in "preparation and planning" (Categories I.A.1. and 2. and B.1. and 2.); "classroom management" (Categories III.A.3., B.2. and 4., and C.1. and 4.); "techniques of instruction" (Categories IV.B.1.,2., and 3.); and "assessment techniques" (Categories VI.A.1., 2., and 4 and B.2. and 3.). These unsatisfactory ratings were justified. Following Mr. Meehan's January 25, 2000, observation, he completed a "record of observed deficiencies/prescription for performance improvement" (Third Report). The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have written lesson plans for the lesson presented. She did not have a stated objective, a homework assignment, activities or a means of monitoring student progress. PRESCRIPTION PLAN ACTIVITIES The instructor will develop weekly lesson plans containing objectives, activities, homework, and a means of monitoring student progress. She will submit the plans to Mr. Meehan for review and discussion on each Friday prior to their implementation. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category I.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The objectives of the lesson were not based on nor did they go beyond the Competency Based Curriculum or the Sunshine State Standards. Since there was no written lesson plan and learning outcomes were not communicated to students, it was difficult to decipher what the instructor was attempting to accomplish. When preparing to distribute a handout to students at the beginning of the period, she stated, "These are the wrong ones." She distributed them anyway. Since there weren't enough copies, she said, "You'll just have to share. Students worked on these handouts for approximately one hour. She then sent two students to leave the room to get workbooks. Without explanation, she assigned page forty-one. Students worked on this assignment for approximately thirty minutes. Neither of these assignments was reviewed nor evaluated. Students were given free time for the remainder of the period. PRESCRIPTION PLAN ACTIVITIES The teacher will prepare detailed lesson plans with objectives based on the Competency Curriculum and the Sunshine State Standards. She will review these plans with Ms. Howard, Language Arts Chairperson, on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The lesson presented by the instructor did not fill the allotted time with prepared content and instructional activities related to objectives. The first hour of the period was consumed on a vocabulary puzzle. The next thirty minutes were spent on a spontaneous assignment given from page forty-one of a workbook. Neither assignment was reviewed. The remainder of the period was given as free time. PRESCRIPTION PLAN ACTIVITIES When preparing her weekly lesson plans, the instructor will divide the time allotted for each period into thirty minute intervals. She will them state the specific activities that will take place within each of these intervals. She will discuss these timelines with Ms. Ann Howard on the Friday prior to their implementation. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category I.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION In the absence of a lesson plan, the instructor distributed puzzles and gave an assignment from a workbook. The remaining portion of the class was assigned as free time. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard, regarding how to best utilize the time allotted in block scheduling to plan her classes. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Howard was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category I.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.A.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Instructional activities did not continue until the end of the class period. The instructor stated that she wanted to close the period by allowing students to watch thirty minutes of television but could not because Mr. Meehan was in the room. She assigned free time instead. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding how to utilize the final thirty minutes of a two hour block to enhance student learning. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Ms. Woltch was listed in the Third Report as a "recommended resource" Respondent could draw upon to improve her performance in Category III.A.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use non-verbal techniques to correct off-task behavior that was evident throughout the class period. Many of the twenty-eight students in attendance were off-task for significant periods of time. During the portion of the class when students were given classwork, three students in rows B and C read Spider Man comics, while the two students in the front of row A worked on unrelated assignments. Two students in the last seats of the middle rows of the classroom slept in each other's arms. A student in front of them drew on the arms of the student next to him. Another student in the middle of row B slept and one in the front of row C played the drums on his desk. During the entire two hour block, students left their seats to walk around the room, talk, and play. The off-task behavior was so extensive that the instructor accused the observer of collaborating with students to cause distractions. A student named Torrey stated, "Mr. Meehan, Ms. Abril thinks we're down." The student in front of row A told the instructor, "They don't do that." The instructor never attempted to return students to task by the use of non-verbal techniques such as eye contact, clapping, silence or proximity. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Julie Fehr's class to see how she uses non- verbal techniques to deal with off-task behavior in her classes. She will then discuss with Ms. Fehr the techniques observed. The instructor will type a summary of her discussion and submit it to Mr. Meehan for review. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.B.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not use techniques to maintain the attention of learners who were redirected. At times during the period more than thirty-three percent of the students were off-task. Students were engaged in activities not associated with the lesson. They talked, sang, slept, and worked on unrelated assignments. The instructor attempted to verbally redirect some students, but their off-task behavior was not revisited and therefore resumed when the instructor turned her attention elsewhere. One young man in row B was corrected for using a Game Boy. He began to read a comic instead. His off-task behavior was not revisited and continued uninterrupted. He proceeded to share his comics with those around him. A young man named Torrey was told to get back to his seat after walking to the side of the room to see his reflection in a mirror. When he returned to his seat, he began to sing. His off-task behavior was never revisited. Verbal and non-verbal techniques to maintain the attention of redirected learners were not evident in this instructor's classroom. PRESCRIPTION PLAN ACTIVITIES The instructor will observe Ms. Theodora Woltch's class to observe how she deals with off-task student behavior. The instructor will prepare a typed summary of this observation and develop a plan to incorporate some of the strategies she learned to reduce the frequency of off-task behavior in her classes. The instructor will submit the material to Mr. Meehan for review prior to implementation. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.B.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The inappropriate behavior manifested by students throughout the class period indicated that expectations about behavior were not made clear to learners. When seeking clarification about the puzzle assignments, students repeatedly blurted out questions without raising their hands. No standardized procedures were established for students to turn in their assignments. Some walked to the front of the room while others passed their papers to students in front of them or beside them. Students left their seats at will to walk around the room or open the classroom doors. With five minutes remaining in the period all of the students, except one, left their seats to go to the door. Some pushed the door open while others tried to close it. These inappropriate behaviors indicated that expectations about behavior had not been communicated previously. PRESCRIPTION PLAN ACTIVITIES The instructor will establish a set o[f] rules regarding appropriate student behavior and classroom procedures. She will type these rules and discuss them with Mr. Meehan before posting them around her classroom. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category III.C.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Students who acted inappropriately or otherwise interfered with the work of others were not dealt with appropriately or with suitable consequences by this instructor. Of the twenty-eight students present in the classroom more than 50 percent walked in late, thereby disturbing students attempting to do the puzzle assignment. Nothing was said by the instructor. Neither the students in rows B and C who began singing, "I'm a Soul Man," nor the students in row A who began singing an unidentified song, were given consequences as a result of their misbehavior. The instructor made no attempt to subdue or control the constant buzz created by students talking and yelling to each other across the room. Most of the students present contributed to this noise which lasted the entire two hour period. PRESCRIPTION PLAN ACTIVITIES The teacher will design an assertive discipline plan that includes suitable rules and appropriate consequences for students who misbehave in class. The plan will also include a suitable reward system to promote and maintain appropriate student behavior in class. In addition, the teacher will prepare a seating chart for each class. Using the charts, the teacher will record instances when students misbehave or otherwise interfere with the work of other students and the consequences imposed as a result of the behavior. The teacher will analyze her instruction to determine which techniques are most effective in dealing with inappropriate behavior. The teacher will submit this information to Mr. Meehan for review and discussion. The "Assertive Discipline Handbook" and Mr. Meehan were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category III.C.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about weaknesses in their performance. The assignments for the class period were a puzzle and page forty-one of the "Buckle Down" workbook. These assignments were neither reviewed nor corrected during the class period. Since the instructor failed to monitor the performance of students as a group or individually, she was not able to provide feedback regarding inadequacies in their work. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback regarding their inadequacies. She will type a summary of the interview and present it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Feedback was not provided to students about strengths in their performance. The instructor failed to monitor the performance of the students on any of the assignments during this class period. She was therefore unable to acknowledge good work and adequate performance. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard regarding practical methods that can be utilized during class to monitor the performance of students and provide feedback about their good work. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category IV.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION No suggestions for improving student performance were made by the instructor during the class period. The instructor neither orally reviewed the answers to the assignments nor individually corrected student work. Consequently, she could not make suggestions for improving student performance and an opportunity for enhancing student learning was lost. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Ann Howard about how learning is enhanced when suggestions for improvement are specific to the learner and the learning task, and when they are communicated in a way that encourages continued effort. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category IV.B.3. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.1., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION During this two hour class period there was no formal or informal examination of pupil work by the instructor. She made no attempt to periodically assess student progress by moving about the room making appropriate observations and asking pertinent questions. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding making informal assessments of student work by moving about the room and asking probing questions. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.1. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not solicit responses or demonstrations from pupils relative to instructional objectives. She did not ask questions that reflected lesson content nor did she require students to demonstrate what they learned. There were no informal assessment techniques used by the instructor during this class period. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Theodora Woltch regarding various ways to informally assess student work by having them demonstrate what they have learned during the class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Woltch were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.A.4., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION The instructor did not have students evaluate their own and/or each other's performance. She did not request that learner's work together on checking each other's work or that pupils check their own responses against answers in the book or on the chalkboard. There was no assessment of student learning and progress made during this lesson. PRESCRIPTION PLAN ACTIVITIES The instructor will discuss with Ms. Ann Howard, Language Arts Chairperson, the advantages of having students grade their own work or each other's assignments during a class period. The instructor will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Howard were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.A.4. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.2., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION An examination of student folders revealed no evidence that more than one kind of assessment was made during the second quarter. Formative assessments such as a library classwork assignment and one quiz were found in some folders but there was no indication that any summative assessment was made during the second nine week grading period. PRESCRIPTION PLAN ACTIVITIES The instructor will read an article from an educational textbook or journal regarding formative and summative assessments. She will type a summary of this article and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Harrell were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.2. The Third Report contained the following accurate "summary/description" of Respondent's deficiency in Category VI.B.3., and directed Respondent to engage in and complete by February 16, 2000, the following "prescription plan activities" that were reasonably designed to help her improve her performance in this category: DEFICIENCY SUMMARY DESCRIPTION Student folders did not indicate that adequate and sufficient summative assessments were made by the instructor during the second nine week grading period. There was no evidence of a summative assessment that included essay questions or performance tasks which are required of students to pass the FCAT examination. PRESCRIPTION PLAN ACTIVITIES The instructor will interview Ms. Julie Fehr regarding types of essay questions and performance tasks that should be included in ninth grade English assessments. She will type a summary of this interview and submit it to Mr. Meehan for review and discussion. Mr. Meehan and Ms. Fehr were listed in the Third Report as "recommended resources" Respondent could draw upon to improve her performance in Category VI.B.3. On January 27, 2000, Ms. Henry held a conference- for-the-record with Respondent to discuss Respondent's failure to complete the "prescription plan activities" set forth in the First and Second Reports. Also present were Craig Speziale, an assistant principal at Carol City, and United Teachers of Dade representatives. At the conference, Ms. Henry reviewed the First and Second Reports with Respondent and admonished her for not completing the "prescription plan activities" set forth in these reports, which, she informed Respondent, she considered to constitute insubordination for which Respondent would receive an unsatisfactory rating in the seventh TADS category, professional responsibility. Ms. Henry subsequently completed a "record of observed deficiencies/prescription for performance improvement" (Fourth Report), in which she rated Respondent deficient in Category VII.B. based upon her "fail[ure] to comply with prescriptive activities and timeliness as outlined in the [First and Second Reports]" and directed her to complete all of these "prescriptive activities" no later than February 16, 2000. A copy of the Fourth Report was provided to Respondent on January 31, 2000. On that same day, January 31, 2000, Mr. Meehan directed Respondent to report for a "post-observation conference" to discuss the Third Report. Respondent refused to go. Respondent was formally observed in her classroom for a final time on February 18, 2000. This observation was conducted by Ms. Henry. Ms. Henry justifiably found Respondent to be deficient in "preparation and planning," "knowledge of subject matter," "classroom management," "techniques of instruction," and "assessment techniques." Because Respondent's 90-day "performance probation period" had expired without Respondent having corrected her performance deficiencies, and Ms. Henry therefore intended to recommend Respondent's termination, the report that Ms. Henry completed following the observation (Final Report) did not contain any additional "prescription plan activities" for Respondent to complete. The "prescription plan activities" described in the First, Second, and Third Reports were not completed by Respondent. On February 19, 2000, the day following Ms. Henry's formal observation of Respondent, Respondent was absent from school. Respondent telephoned the school to notify the administration of her absence, stating that she had injured her ankle and foot on February 17, 2000, and that she did not intend to return to work until after she had been seen by a doctor. Respondent never returned to work. (She did go to Carol City, however, on February 25, 2000, to pick up her pay check. During this visit, Respondent was asked to sign the Final Report, as well as a written recommendation for her termination that Ms. Henry had prepared and sent to the regional and district offices on or about February 22, 2000. Respondent refused to sign these documents.) By letter dated February 24, 2000, the Superintendent of Schools advised Petitioner that, pursuant to Section 231.29, Florida Statutes, he was recommending that the School Board, at its March 15, 2000, meeting "terminate her employment contract as a teacher, effective at the close of the workday, March 15, 2000 . . . because [she had] failed to satisfactorily correct identified performance deficiencies during [her] 90-Calendar Day Performance Probation and [because of her] gross insubordination." In his letter, the Superintendent further informed Respondent that she could contest his recommendation by requesting, within 15 days of her receipt of the notice, a hearing on the matter. Respondent requested such a hearing. Respondent was suspended without pay pending the outcome of the hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the ground set forth in Count I of the Notice of Specific Charges ("Unsatisfactory Performance"). DONE AND ENTERED this 8th day of September, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2000.
The Issue The issue presented here concerns an Administrative Complaint brought by Ralph D. Turlington, as Commissioner of Education, against Willie Lynn Brown, calling for the revocation, suspension or other appropriate disciplinary action against the Respondent's teaching certificate issued by the State of Florida. The contention in this Administrative Complaint is that the Respondent, while employed at the A. D. Harris Sixth Grade Center, conducted physical acts with a minor male student, involving the student sitting on the Respondent's lap and the Respondent taking one of the student's hands and rubbing it against the Respondent's genital area. For these alleged acts of misconduct, the Petitioner attempts to discipline the Respondent, in keeping with the provisions of Section 231.28, Florida Statutes, in that the Respondent is reputedly guilty of gross immorality and an act of moral turpitude and conduct which seriously reduces his effectiveness as an employee of the Bay County School Board and further the Petitioner, in keeping with the Provisions of Section 231.09, Florida Statutes, claims that the conduct on the part of the Respondent is conduct which fails to provide a proper example for students.
Findings Of Fact This matter is here presented for consideration following an Administrative Complaint brought by Ralph D. Turlington, as Commissioner of Education, State of Florida, vs. Willie Lynn Brown, Respondent. The dispute concerns the allegations as alluded to in the Issues statement of this Recommended Order. The Administrative Complaint is dated April 9, 1981. After receipt of the Administrative Complaint, the Respondent requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. In turn, the Petitioner in this action asked that the matter be conducted by the Division of Administrative Hearings, this request being forwarded on May 14, 1981. After consideration of certain preliminary matters, the final hearing in this cause was conducted on July 10 and 14, 1981. The Respondent holds Florida Teaching Certificate No. 385083, valid through June, 1985, and covering the areas of elementary education, early childhood education and administration/supervision. At all times pertinent to this matter, the Respondent Willie Lynn Brown, was employed by the Bay County School Board as a teacher at the A. D. Harris Sixth Grade Center. In the school year 1980-81, a local civic club in Panama City, Florida, held an oratorical contest for the benefit of students in the Bay County School System. Among the participants in that contest were students from the A. D. Harris Sixth Grade Center where the Respondent taught. Brown acted in the capacity as advisor to those students and met with the students from the Harris Center on several occasions to aid the students in the preparation of their speeches, and in the presentation of those speeches. One of the students participating in the oratorical contest was Steve William Rudd, a minor. Rudd was not a student in Brown's regular academic classes. The involvement Rudd had with Brown prior to the oratorical contest was merely to the extent of knowing that Brown was a teacher at Harris. On the first occasion of Rudd's participation with Brown in the speech contest, Brown met with Rudd and other students in the auditorium at the school and listened to their speeches and critiqued their presentation. The next occasion in which Brown took part in the preparation of the students for the oratorical contest occurred in Brown's homeroom, at which time the general nature of the relationship between Brown and the students was as occurred at the auditorium session. On the third occasion in which the Respondent met with Rudd there was also in attendance a second student, William Arnold Stevenson. This session was held in the classroom of another teacher. On that occasion Stevenson was allowed to present his speech while Brown listened and Rudd waited for his turn. When Stevenson had concluded his speech, he left the room leaving Brown and Rudd alone. Rudd then commenced his speech standing at the front of the room, and he concluded that presentation while Brown moved around the room listening to the speech. Brown then made certain suggestions to Rudd about correcting Rudd's speech presentation and then asked Rudd to move to the back of the classroom. Rudd complied with that request. Rudd then began to give his speech again while standing at the back of the room in the area of a desk. At this time the Respondent was moving around the room and eventually approached Rudd. At that point, Brown placed his folded arms on the back of Rudd at Rudd's shoulder level. At this juncture, Rudd was facing the front of the classroom and the Respondent was directly behind him. The front of Brown's body was touching the back of Rudd's person. Brown remained in this position until Rudd had concluded his speech. During this interval, Brown made no comment. The interval for this occurrence was approximately two or three minutes. After Rudd had presented his speech for the second time, the Respondent went and took a seat in a chair in the back of the classroom. The Respondent then instructed the student to sit on the Respondent's lap. Rudd complied and seated himself on the Respondent's leg, in the area of the Respondent's knee. The Respondent then gestured with his hands, pointing in the direction of the Respondent's groin area, meaning the genital area, and said to the student, "sit right here." The Respondent then pulled the student toward his body and at that time the student was seated on the Respondent's genital area with his back against the Respondent's chest. No comment was made during this part of the episode, which lasted a short time. Brown then moved Rudd back away from his body into the original location near his knee. He then took the student's right hand and with the student's hands stroked Brown's genital area. This maneuver with the student's hand was a momentary event. While the student was seated on the Respondent's lap, he was concerned for his welfare and in particular worried about the door which had been locked by the Respondent. The student thought that the door was locked such that he, the student, could not exit. In fact, the door was locked barring entry from persons outside the room. Brown released Rudd's hand and told Rudd that he could get out and that Brown was sorry for what had occurred. He told the student this several times, once when the student got up, once when the student was midway in the classroom approaching the door, and once when the student got to the door. On the same day as the event transpired, Rudd reported the incident to the Principal at Harris Center, one James Griffin. Griffin then confronted the Respondent with the student's allegations by asking Brown if the story that Rudd had told about the incident was true. Brown responded, "Yes, it is." When Griffin asked him why he did it, Brown said, "I don't know." Griffin then commented to Brown that the matter was a very serious offense and that Brown might be suspended or dismissed from the school system, to which Brown replied, "I know this." Griffin then asked Brown if he was prepared to face the consequences, and Brown replied, Yes, I guess I am." Since the time of the event, some of the other students in the sixth grade center have referred to Rudd as a "gay boy," meaning that Rudd was a homosexual, due to his circumstance with Brown and that Rudd "felt Mr. Brown off," meaning that Rudd had manipulated the Respondent's penis. Rudd had bean teased about the event by other students, and the students did not talk to him. Rudd has felt insecure in his home and has desired to sleep on the floor in a sleeping bag with the lights on because of this event with the Respondent. Rudd has felt as if someone were watching him even in his home, in particular that the person was the Respondent. The student has also felt that he did not wish to sleep by a window and has chosen to sleep in the middle of the room, and at times has slept on a couch in the living room of his home. The aforementioned treatment of the student by other children in the sixth grade center led Rudd's parents to change his bus transportation to avoid a confrontation with the children. Nonetheless, it has not been necessary for the student to seek psychiatric assistance and he is recovering from the trauma of the subject occurrence. In spite of attempts by the school authorities to deter publication of this incident, students, teachers, parents, staff and other persons within the community have learned of the incident and Principal Griffin is of the persuasion that there would be dissension with teachers, parents and students should Brown be allowed back as an instructor in the school. Griffin feels that there would be a lack of trust in that Brown has lost his effectiveness as an instructor. Likewise, Bay County Superintendent Holman who is familiar with the case facts, is of the persuasion that Brown's effectiveness as a teacher in Bay County has been seriously reduced. Nothing offered in defense rebuts the opinion of these educators. Following the incident, a meeting was held on March 6, 1981, between the Respondent and Pete Holman, Superintendent of Schools in Bay County, Florida, with the Principal Griffin being in attendance. At that time Brown again admitted that the incident had occurred and subsequent to this meeting Brown was suspended from his teaching duties in the Bay County system. There ensued an administrative complaint brought by Ralph D. Turlington as Commissioner of Education in the State of Florida, and the Bay County School Board took action to discharge the Respondent as an employee.
Recommendation Upon consideration of the facts of this case, the conclusions of law reached in matters in aggravation and mitigation, it is RECOMMENDED: That the Respondent, Willie Lynn Brown, have his teacher's certificate in the State of Florida, revoked permanently. 1/ DONE and ENTERED this 21st day of September, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981.
The Issue Whether Respondent should be dismissed from her employment with the School Board of Dade County, Florida, upon grounds of incompetency, gross insubordination, willful neglect of duty, misconduct in office and/or absence without leave. POST-HEARING PROCEDURE A transcript of the formal hearing was provided the undersigned on March 21, 1985, and proposed findings of fact and conclusions of law were timely filed by both parties. A subsequently-filed revision of Respondent's initial proposal was accepted without objection and considered. When a party's proposed findings of fact were consistent with the weight of the credible evidence admitted, they were adopted and are reflected in the Recommended Order, but to the extent proposed findings of fact were not consistent with the weight of the credible evidence, they have been rejected or, where possible, modified to conform to the evidence. To the extent proposed findings of fact have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence. A ruling on each proposed finding of fact has thereby been made either directly or indirectly except where the proposed finding of fact was cumulative, immaterial, or unnecessary. Based upon observation of the witnesses and their candor and demeanor while testifying, all exhibits admitted in evidence, and the proposals and arguments of counsel, the following relevant facts are found:
Findings Of Fact Respondent was initially employed by Petitioner on November 15, 1982, at West Little River Elementary School. She suffered a non-school related accident and was absent approximately 121 days during the 1982-1983 school year. Observations of her teaching by her then-principal, John Johnson II, were unfavorable, but due to the prolonged absences, those observations did not result in any formal evaluations/recommendations. Respondent's requested leave for this period was granted and approved by Petitioner upon the basis of her severe electrical shock and back injury. Some of this period was classified as leave without pay. Petitioner also paid Respondent's insurance premiums for this period. Having thus condoned this absenteeism, Petitioner cannot now be heard to complain of it. (See allegations of Paragraph 18 of the Notice of Charges.) Principal Nicholas Rinaldi of Bay Harbor Elementary School hired Respondent as the teacher for its new "home-based" gifted program beginning there for the 1983-1984 school year. Although Principal Johnson would not have recommended Respondent for employment in the second year, he was not consulted by Principal Rinaldi. Principal Rinaldi told Respondent that she was limited to a $1,000.00 budget for purchasing materials for the program she was to develop. Principal Rinaldi understood that Respondent knew she was both to stay within this budget which is the standard limit at all home-based gifted programs and that she was required to get prior approval of her purchases from him. Apparently, Respondent grasped, the concept of a $1,000.00 "cap" but did not initially understand that she was to obtain prior written permission. After two orders were cancelled, she still had overspent by $60.00. She was then told specifically not to make any further purchases without the principal's permission. Thereafter, another order placed by Respondent was received at the school but Petitioner did not establish that Respondent placed the order after the cancellation of two prior orders and after Rinaldi's specific instruction not to order any more goods whatsoever. (See allegations of Paragraphs 1 and 3 of the Notice of Charges.) Respondent was clearly informed that she needed prior authorization for phone calls. She did not get prior permission for five long distance phone calls made personally or by students at her direction. The total cost of these calls is 8.56, which is very minimal. All calls were related to classwork with the exception of one call for $.44 and one call for $.25, which were admittedly of a personal nature. Respondent reimbursed the $.72 after the fact when notified of investigation into the phone bill. (See allegations of Paragraph 2 of the Notice of Charges.) Twenty-five students are required for a home-based gifted program. Bay Harbor was one of three North area schools piloting a home-based program in the 1983-1984 school year. In prior school years, gifted children from Bay Harbor attended a center program physically located elsewhere. A center program places a team of teachers of subjects from various schools in one physical location. Eligible students from various schools come to the center for two days a week for the gifted program and they receive their basic skills education at their respective home schools in the remaining three days per week. In a home-based program, a school which has enough gifted students elects to keep those students physically at the home school. They usually go into that program for two hours a day, every day. Some subject or subjects are used to deliver the gifted program. Those subjects are then graded by the home- based gifted teacher, who in this case was Respondent. When he hired her, Principal Rinaldi told Respondent that mathematics would be part of the new "home-based" gifted program, but math was essentially unstructured in the beginning. Thereafter, Principal Rinaldi instructed Respondent to utilize the standard Dade County "total math program, (TMP). When the TMP program was selected by Principal Rinaldi in approximately, December 1983, his motivation was that he understood TMP provided a structure for math that allows students to enter at the level that they are individually and moves each at a pace commensurate with his individual ability. Unfortunately, because a home-based program does not select its students on their specific giftedness in content area, some students in Bay- Harbor's 1983-1984 pilot program were lower than others in math. Some were even below their grade level. Those above the grade level were becoming bored with the program and those below the grade level were in a constant state of frustration struggling to keep up. A failure on Respondent's part to communicate surfaced, and misunderstandings arose between Respondent and parents and students as to the nature of projects, when projects were due and the reasonableness of homework. Problems concerning teacher absences also arose. The more academic and less "time-out-of-school" atmosphere of a home-based versus a center-based program also caused problems between the Respondent teacher and students/parents and between the Respondent and her principal. Upsets among the students and their parents resulted in many students being permanently removed from the gifted program. Over a period of time, the decrease in enrollment threatened to destroy the Bay Harbor gifted program, the survival of which required 25 students. On January 4, 1984, Principal Rinaldi observed Respondent's class for an hour for teacher evaluation purposes. This resulted in a basically good evaluation with some areas targeted for improvement (instructional planning and maintenance of student records [P-7]). The crux of this targeting was the principal's perception that Respondent did not record sufficient grades and her student files were not arranged alphabetically with papers arranged chronologically within each file. This standard of record-keeping is personal to Mr. Rinaldi and not uniform among other Dade County principals. At the standard post-observation conference, the two argued over the evaluation and the exactitude required by the principal, and Respondent refused to sign the evaluation to acknowledge that she had seen and received a copy of the document. As will be related infra, this refusal to sign or initial merely for acknowledgment of receipt of documents became a constant and continuing refusal on Respondent's part whenever the issue came up. Six days later she refused again; on January 17, 1984, Respondent responded in four written pages defending her methods. As events unfolded chronologically thereafter what started basically as a personality clash of the principal's "irresistible force" authoritarianism and the teacher's "immovable object" obstructionism mushroomed to affect students, parents, teachers, and administrators. In early January, Respondent complained concerning the inclusion of math in the gifted program to a higher outside administrator Dr. Agerwald. Mr. Rinaldi objected to this contact. On January 11, 1984, Mrs. Vickers, Petitioner's Director of Exceptional Students Program, arrived to observe Respondent's classes. She prepared a "School Visitation Report." The report is basically positive but does comment that the gifted classes are too big and current IEPs (records) were not and should have been available in the classroom. On February 2, 1984, Vickers issued a commendation to Hay Harbor on quality of cumulative records for exceptional children. Mr. Rinaldi passed this commendation (R-19) on to Respondent with the note, "Mrs. Burton, please continue this fine record 2/6/84." On 1/23/84, he also commended her on quick responses to the Miami Module records-keeping requests (R-20). Petitioner's advisor to gifted teachers, Richard Huffman, was assigned to assist Respondent at the beginning of the 1983-1984 school year. He testified that in his opinion she was a fit teacher, but he was removed as her advisor at the end of January or early February. February 24, 1984, Assistant Principal Vince Vignola observed Respondent in the classroom for a full hour and rated her overall acceptable except that she needed more grades in math and had, lost a student "contract" which had never been signed. Principal Rinaldi called in Gary Rito, Petitioner's Director of Academic Excellence for help resolving the gifted class problems. On March 2, 1984, Mr. Rito met with Respondent, Principal Rinaldi, and Mrs. Laurence, mother of a gifted student. Respondent and Laurence, who teaches elsewhere in Dade County, exchanged sharp words. It was agreed to meet again on March 8, 1984. At that time, James Miley, Petitioner's Supervisor of Gifted Programs, was present. Respondent was given written notice of the meeting one day in advance. Respondent elected to continue in this meeting at the conclusion of the school day. At this time most of her concerns, as expressed to all others present, were with the number of subjects she was required to cover and with the content of the mathematics curriculum in particular. Mr. Rito explained that "gifted" symbolizes a "technique" not a "subject," that Respondent was to use this technique for teaching subjects of math, science (which Respondent should be teaching anyway), and social studies, and for teaching a health and safety unit which was taught for only one or two grade units. Respondent strenuously objected to the use of the TMP math program. Rinaldi and Miley concurred that it was reasonable to include math in the gifted program. Math was, in fact, successfully used in the other two home-based programs beginning in Bay Harbor's Division that year, but the programs utilized may not have been the TMP. Nonetheless, the following adjustments were agreed upon among all those present at the March 8, 1984 meeting: Principal Rinaldi agreed to relieve the academic excellence program of the TMP math program and increased their enrichment activities; Ms. Thomas, Say Harbor's 6th Grade math teacher, was assigned by Principal Rinaldi to help Respondent in math. It was later Ms. Thomas' assessment that Respondent did not understand the TMP concept; and Respondent was directed and agreed to develop four units of study in botany (2 intermediate and 2 primary) to cover the rest of the school year (9 weeks). These plans were to cover instructional objectives, classroom activities, student evaluation methods and homework assignments on a time line. A preliminary plan was to be shown by Respondent to Mr. Miley on March 20. This assignment was primarily the result of a request by Ms. Laurence and other parents requesting to see a sets of plans for purposes of deciding whether to leave their children in the Respondent's class or return those who had already been withdrawn. Rinaldi, Rito, and Miley felt the plans required by the directive would ease the primary problems of implementing the program and of parent-teacher communications and misunderstandings which had been growing, and also felt they were reasonable and necessary. Everyone was aware that withdrawal of Mrs. Laurence's child could reduce program enrollment below the 25 student minimum required. However, no one clearly expressed the belief that this directive was a prescription to improve Respondent's teaching performance, which had been found basically sound up to this point. 1/ The direction itself was for a reasonable and necessary purpose (preserving and improving the gifted program). However, despite Mr. Miley's opinion that the plans as initially directed were reasonable and necessary and despite Respondent's failure to object to the direction at this point, the initial scope of the direction was actually unreasonable under the circumstances. Mr. Miley postponed his scheduled meeting with Respondent from March 20 to March 23, 1984. On that date, Respondent had nothing to show him with regard to the required botany units she had been asked to prepare. Mr. Miley met with Respondent anyway and reduced the required units from 4 to 2 and extended the time for preparation until April 12, 1984. He also gave her a document entitled "Standards of Excellence" for use in the units she was to prepare and agreed to let Respondent continue with her present evaluation system. This adjustment, made in consultation with Respondent also rendered the scope of the direction to prepare the units reasonable. 2/ On April 12, 1984, Mr. Miley asked for the required botany units and received nothing from Respondent. He returned to the school on April 13, and Respondent produced a series of goals and objectives essentially copied from the "Standards of Excellence" wherein she had identified part of a program for the primary students but none for the intermediate students. There were no classroom activities listed, no homework mentioned, and no time lines provided. Despite the extension of time, Respondent did not fulfill the required directive even in its reduced and consequently reasonable form. 3/ The units were not further amplified by Respondent before she left on April 20 and Mrs. Laurence's child was permanently removed from the gifted program. (See allegations of Paragraphs 5 and 7 of the Notice of Charges). On March 12, 1984, Respondent called Principal Rinaldi a liar three times in the presence of two other school employees. 4/ (See allegations of Paragraph 4 of the Notice of Charges.) Respondent later informed Principal Rinaldi that she perceived the March 8 meeting as disciplinary in nature. He had not considered it so. He accordingly removed a request for her signature from a summary he had prepared of the March 8 meeting and scheduled a "conference-for-the-record" for March 16, 1984. Conferences-for-the record are disciplinary conferences. The March 16, 1984 meeting was postponed at the request of the Respondent's union representative. A second request for postponement for emergency reasons peculiar to the schedule of that particular union representative (Ms. Perez), was not granted and the conference-for-the-record went forward on March 20, 1984, with Respondent accompanied by her union steward, James Collings. At this conference, Rinaldi discussed the same matters that had been discussed at the March 8, 1984 meeting, the incident which had occurred March 12 when Respondent called him a "liar" three times, Respondent's unsatisfactory attendance record that year, and the fact that her absences were having an adverse effect on the program. Respondent was specifically instructed by her union advisers not to speak at this conference. Certainly she did not deny the March 12 "liar" incident. When she did not respond to Principal Rinaldi's accusations and inquiries, he became agitated. Respondent had received prior approval for a half-day in-service conference (8:30 a.m. to noon on March 21, 1984) with Mrs. Vickers, Director of Petitioner's Exceptional Student Education Program. When she did not report back to teach at Bay Harbor that afternoon, Mrs. Macri, secretary to Principal Rinaldi made inquiries and Respondent's continued presence with Mrs. Vickers was confirmed, but not approved. This constitutes a 1/2 day's absence without leave. No substitute was procured since Respondent had been expected to teach her afternoon class. (See allegations of Paragraph 12 of the Notice of Charges.) On March 28, 1984, during a regularly scheduled parent meeting, the parents present expressed a great deal of dissatisfaction with various aspects of the gifted program, particularly math. Principal Rinaldi publicly attributed the problems in the gifted program to Respondent and Respondent retaliated by publicly stating that she did not believe TMP math should ever have been included in the gifted program and that she had no control over the inclusion of the math. The majority of witnesses actually present at this meeting found its entire tone and nature informative prior to Principal Rinaldi's comment. Even then, Respondent's comments may have been less than tactful but were hardly untruthful, unprofessional, irresponsible, or incendiary. (See allegations of Paragraph 6 of the Notice of Charges.) Respondent was tardy to the March 29, 1984 faculty meeting. Based on the contemporaneous memoranda and letter, Respondent's estimate of 3-4 minutes tardiness is accepted over Dr. Rinaldi's later estimate of 20 minutes. The causes related contemporaneously by Respondent are entirely reasonable. (See allegations of Paragraph 11 of the Notice of Charges.) At Principal Rinaldi's April 16, 1984 classroom observation of Respondent, he rated her teaching performance as unacceptable in 3 categories: preparation and planning, assessment techniques, and professional responsibility (P-18). Rinaldi testified that his negative ratings in preparation and planning were due to what were minor concerns on the January evaluation. However, as observed above in Fact Paragraph 6, the January evaluation actually concentrated on the principal's particularly harsh requirement that Respondent's student files must be arranged alphabetically with papers neatly arranged chronologically within each file. Since his perception of the adequacy of records is so intensely personal to Mr. Rinaldi and in light of interim commendations to Respondent for record-keeping, his April analysis of inadequate records of assessment renders the final evaluation "score" highly suspect. 5/ (See allegations of Paragraph 8 of the Notice of Charges.) Respondent was tardy to work and failed to timely sign in on March 26, 27, 28, and April 20, 1984. (See allegations of Paragraph 13 of the Notice of Charges.) Respondent was absent on April 17, 18, and 19. She requested leave for April 17-18 late but it was approved and authorized in advance by Principal Rinaldi for participation in religious holidays. However, these were absences without pay and pushed Respondent over the number of personal leave days to which she was annually entitled. Respondent was absent without authorization on April 19; this was an absence without pay. (See allegations of Paragraphs 14 and 19 of the Notice of Charges.) On April 20, 1984, Respondent protested, but finally agreed to meet with Principal Rinaldi in his office for a post-observation conference. Post- observation conferences are not normally considered disciplinary in nature. By this time, he had added Respondent's late notification of the 4/17-4/18 absence and her 4/19 absence to the prescription sheet as deficiencies. Respondent declined an oral dialogue with Rinaldi wherein she was invited to respond to the rating criticisms and prescriptions and offer alternatives and also refused to initial his notation that she insisted on responding in writing. Midway in this meeting, Respondent announced she was going to leave. Again, she would not sign to acknowledge receipt of the observation and prescriptions. Rinaldi instructed her that she was obligated to discuss the rating and if she left, he would consider it insubordination. Respondent left his office and the school and did not return to work as a teacher at Bay Harbor again. A formal reprimand issued partly as a result of this incident. (See allegations of Paragraph 9 of the Notice of Charges.) On April 23 and April 24 Respondent was absent without pay. April 23 was unauthorized leave. (See allegations of Paragraphs 14 and and 19 of the Notice of Charges.) With regard to the frequent' short absences, which total led 18 as of April 22, Respondent rarely if ever complied with the "Teachers' Handbook" guidelines for advance notification. Respondent originally felt that it did not matter what type of leave (personal or sick) was listed because she had no leave left anyway. Although many of these absences were for legitimate illnesses or injury of herself or a relative, there was either an on-going absence of lesson plans or a failure on Respondent's part to inform the principal that she had created plans since he last commented on there being none. Consequently, he often could not or did not secure substitutes. This resulted in wasted class time and interfered with classroom continuity. Some of Respondent's unauthorized absences were simply gifted programs she chose to attend without notifying the principal in advance. Respondent was also absent during the 1983-1984 school year for two lengthy periods, which, with all other absences, totalled 62 1/2 days. Medical narratives, admitted without objection, corroborate Respondent's testimony that the two lengthy absences were the result respectively of unanticipated allergic complications of a CAT scan (from January 30 to February 10, 1984,) and of surgery to correct acute sinusitis and recovery time from late April until release. One doctor released her from this last treatment On May 29, 1984; the other released her on June 8, 1984. During the period of time she was absent immediately following the April 20 "walkout" incident until approximately June 8, Respondent failed to adequately inform Petitioner of her proposed date of return. Certified letters sent to her post-office box were returned because Respondent did not pick them up and Petitioner could not send these to her by regular mail or by hand- delivery via a "visiting teacher" because Respondent had never informed Petitioner of her street address. The failure of Respondent to stay in touch, her failure to indicate when she could return to work, and her failure to indicate that her absence would be lengthy resulted in an inability of Petitioner to immediately hire a permanent substitute teacher. Therefore, the gifted classes had to "make-do" with a series of short term substitutes (4 or 5) until Mr. Rinaldi finally hired Mrs. Judith Dryanoff. This process created a lack of continuity in the classroom and more student withdrawals from the gifted program. The problem with multiple substitutes was compounded by Respondent's failure on April 24 and thereafter to have available substitute lesson plans. 6/ Because of Respondent's failure to leave any form of lesson plans or grade book, substitute Judith Dryanoff had to make up her own lesson plans for science and enlist the help of Janice Thomas for math plans. (See allegations of Paragraph 10 of the Notice of Charges.) On May 24, Principal Rinaldi signed Respondent's Annual Evaluation, not recommending her for employment in the next school year (P-22). When released by her doctors, Respondent was assigned by Administration to the North Area Office for June 11-15 and was expected by her principal to be at Bay Harbor simultaneously. She obviously could not do both. She was at the North Area Office for part of June 12 and at Bay Harbor for part of June 14. She was in neither location on June 11, 13, and 15. These days constitute absences without leave. (See allegations of Paragraph 19 of the Notice of Charges.) On June 12, 1984, James Monroes, a supervisor in Petitioner's Division of Personnel Control, ordered Respondent to begin the 180 hour course, Beginning Teacher Program, to start at 10:00 a.m., June 14, 1984, at Bay Harbor Elementary School. 7/ At 7:20 a.m. that morning Respondent confronted Principal Rinaldi in his office and called him "malicious, devious, incompetent," and "a sorry excuse for a principal." She accused him of personally taking her personal items from her room and of attempting to get her fired. 8/ Although she initially refused to come back for the program, she returned at 10:00 a.m. and repeated essentially the same harangue in the presence of Mrs. Thomas, the peer teacher selected to oversee Respondent's Beginning Teacher Program. Mrs. Thomas was called in by Mr. Rinaldi who had anticipated that a scene would ensue. Thereafter, out of Mr. Rinaldi's presence, Respondent invited Mrs. Thomas to sign a petition "to get rid of Mr. Rinaldi". (See allegations of Paragraph 15 of the Notice of Charges.) Dr. Huffman testified that Respondent also frequently yelled at Mr. Rinaldi in Dr. Huffman's presence prior to Dr. Huffman's February reassignment, and Mrs. Macri, secretary to Principal Rinaldi testified that she had heard Respondent call Mr. Rinaldi a "bastard" or refer to him as a"bastard," but the date of this incident(s) was not proven. On August 29, 1984, Dr. Richard Artmeier, supervisor of Petitioner's Division of Personnel Control, directed Respondent to be psychiatrically evaluated the next day to determine if there were any mitigating circumstances for her June 14, 1984 behavior. Respondent is obligated to submit to such evaluation by terms of her employment. After vacillation, Respondent refused to sign the written directive indicating its receipt and adamantly refused to see a psychiatrist. Finally, Dr. Artmeier directed her instead to report to the North Area Office the next day. Respondent did, however, actually go the next day as originally directed for psychiatric evaluation to Dr. Gail Wainger. Dr. Wainger was on Petitioner's "approved" list. In so doing, Respondent could not immediately comply with the directive to report to the North Area Office. Respondent reported to the North Area Office later the same day after her psychiatric evaluation. Petitioner accepted Dr. Wainger's psychiatric evaluation of Respondent, paid for it, and it was admitted at hearing upon Petitioner's motion (P-38). Since Respondent could not be in two places at once, she fulfilled the alternative directives reasonably by fulfilling them sequentially even if she did initially refuse. (See allegations of Paragraphs 16 and 17 of the Notice of Charges). The psychiatrist's evaluation is admissible under Section 231.291, Florida Statutes and has been considered. Upon that evidence, together with all other credible evidence adduced at formal hearing, Respondent was accountable for her actions. Respondent has never qualified for and has never been characterized as a teacher under continuing contract.
Recommendation It is recommended that Petitioner enter a Final Order dismissing Respondent from employment with the Dade County School Board and denying any claims for back pay. DONE and ORDERED this 20th day of June, 1985, in 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 20th day of June, 1985.
The Issue The issue is whether Petitioner, the Lee County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the Petition for Termination of Employment.
Findings Of Fact Respondent has been employed by the School Board as an instructional employee since August 21, 1998. He is a member of the Teachers Association of Lee County ("TALC"), the collective bargaining unit for instructional personnel, is covered by the collective bargaining agreement between the School Board and TALC, and holds a professional service contract with the School Board At the time of his hiring, Respondent was assigned to the dropout prevention program at Academy High School, where he taught for one year. On August 17, 1999, Respondent began teaching at High Tech Central, a vocational/technical school. High Tech Central's student body includes both high school students and adults seeking to obtain job skills. A large percentage of the adults attending High Tech Central receive assistance from the Pell grant program, a need-based undergraduate financial aid program funded by the federal government. During the 1999-2000 and 2000-2001 school years, Respondent taught the second semester of the personal computer ("PC") support services class, sharing a large classroom with Beth Ames, the teacher who taught the first semester of the same class. During the 2001-2002 school year, Respondent taught a web design class. During the 2002-2003 school year, Respondent taught CET in a co-teaching arrangement with Jeff Ledger, who had taught the CET class for the previous six years. At the end of that school year, Mr. Ledger moved to Ohio. From the 2003-2004 school year until the time of his suspension, Respondent alone taught the CET class. Throughout his period of employment with the School Board, Respondent also taught computer, business, and accounting courses as an adjunct professor at Edison College in Fort Myers. Until the 2003-2004 school year, Respondent received nothing less than satisfactory performance assessments. For the 1998-1999 school year, his performance was graded as satisfactory in each of the twelve criteria listed on the performance assessment form.2 His assessor at Academy High School wrote in the comment section of the assessment that "Mr. Nevins is well versed in technology and vocational skills," and commented favorably on Respondent's flexibility and cooperativeness in meeting the needs of students. For the 1999-2000 school year, Respondent's performance in teaching the PC support services class at High Tech Central was graded as exceeding expectations in five of the twelve criteria listed in the performance assessment form and as meeting expectations in the remaining seven criteria. High Tech Central's assistant director Susan Cooley prepared the assessment and wrote that Respondent "has done an outstanding job with collaboration with teachers and staff here at [High Tech Central]. He is very creative and strives to produce projects and alternative techniques for student achievement." For the 2000-2001 school year, Respondent's performance was graded as exceeding expectations in five of the twelve criteria and as meeting expectations in the remaining seven criteria. Ronald Pentiuk, the director of High Tech Central, prepared the assessment and offered no written comments. For the 2001-2002 school year, when Respondent moved from PC support services to web design, Respondent's performance was graded as exceeding expectations in three of the twelve criteria, and as "meets expectations" in the remaining nine criteria. Mr. Pentiuk commented that "Mr. Nevins has performed in an outstanding manner-- really super job in preparing the new CET lab." For the 2002-2003 school year, when Respondent moved from web design to co-teaching the CET class with Mr. Ledger, Respondent's performance was graded as exceeding expectations in three of the twelve criteria and as meeting expectations in the remaining nine criteria. Mr. Pentiuk performed this assessment and offered no additional written comments. For the 2003-2004 school year, when Respondent began to teach the CET class alone, Respondent received a grade of meeting expectations in eight criteria. In the criteria titled "Planning for Student Achievement" and "Subject Matter," Respondent received a grade of "exceeds expectations." In the criteria titled "Assessment of Student Achievement" and "State, School & District Requirements," Respondent received a grade of "below expectations," meaning that his performance was unsatisfactory. Mr. Pentiuk performed this assessment and offered no additional written comments. The record established at the hearing shows that High Tech Central's administrators expressed concern about Respondent's teaching and record keeping practices as early as May 2002. Ms. Cooley testified that, at the conclusion of the 1999-2000 school year, Ms. Ames had approached her with a request that she be permitted to teach both sections of the PC support services class alone, rather than splitting the course with Respondent. Ms. Ames stated that she was doing all the work anyway and felt it would be better for the students if she handled the class without Respondent. Ms. Cooley left matters as they were for the 2000-2001 school year, but then moved Respondent into the web design class for the 2001-2002 school year. As the 2001-2002 school year progressed, Ms. Cooley became concerned that Respondent was not properly tracking the progress of his students. She recognized that this was the first time that High Tech Central had offered a web design course and there would be a "learning curve" for everyone involved, including the instructor. Thus, the school's administration gave Respondent time over the course of the school year to work out the problems. In particular, Ms. Cooley was concerned that Respondent was not using lesson plans or a "career map" in his class. Each technical program at High Tech Central consists of a progression of competencies. To complete the program, or to pass from one phase of the program to the next, a student must demonstrate mastery of a certain set of competencies. An "occupational completion point" ("OCP") is a cluster of related competencies that a student is able to demonstrate and perform. A career map is a written chart completed by the instructor and used by the student to track the student's progress through the OCPs of a given program. Ms. Cooley testified that during the spring of 2002, three or four students in Respondent's class came to her to complain that there were no lectures or structured class work in the web design class and that the students in the class were left to do whatever they wanted. In early May 2002, a substitute teacher in Respondent's class came to Ms. Cooley to complain that Respondent left no lesson plan, despite the fact that his absence had been scheduled. The substitute teacher told Ms Cooley that the web design students appeared to be doing as they pleased in the class, including playing games on their computers. On May 5, 2002, Ms. Cooley and Mr. McCormick had a meeting with Respondent to discuss the lack of structure, discipline, and record keeping in Respondent's class. Ms. Cooley stated that every time she talked with him, Respondent would say he was going to do things better. Her concern was that she never saw any evidence of Respondent's performance matching his words. When queried as to the positive performance assessment authored by Mr. Pentiuk for the 2001-2002 school year, Ms. Cooley testified that she and Mr. Pentiuk had "agreed to disagree" about Respondent. Mr. Pentiuk was a "very, very accommodating" and "very, very patient" administrator who believed that Respondent was trying to do things the right way.3 Ms. Cooley had many conversations with Mr. Pentiuk about Respondent, but Mr. Pentiuk's philosophy was to give Respondent time, talk to him, and let him try to turn things around. Mr. Pentiuk also believed that Respondent's contacts in the business community were an asset to his students. Mr. Pentiuk testified that, due to lack of enrollment in the web design class, Respondent was moved into the CET class with Mr. Ledger for the 2002-2003 school year. Ms. Cooley testified that the administration believed that Respondent and Mr. Ledger could share each other's expertise in the same class for one year, then the CET program could be expanded by splitting it into two classes. The Department of Education standards state that the purpose of the CET program is to prepare students for employment or advanced training in the computer electronics industry. The Department's curriculum framework set forth the program structure as follows: This program is a planned sequence of instruction consisting of five occupational completion points as follows: (1) End User Support Technician, Level I Support Technician, Help Desk Specialist; (2) PC Electronics Installer; (3) PC Technician, Field Technician, Level II Support Technician; (4) Computer Support Specialist, Level I LAN Technician, Field Service Technician; (5) PC/Network Technician (Digital Electronics Repairer, proposed name change for 2005). When the recommended sequence is followed, the structure will allow students to complete specified portions of the program for employment or to remain for advanced training. A student who completes the applicable competencies at any occupational completion point may either continue with the training or become an occupational completer. The courses [sic] content includes, but is not limited to, installation, programming, operation, maintenance and servicing of computer systems; and diagnosis and correction of operational problems in computers arising from mechanical, electrical or electronics, hardware, and software malfunctions. The course content includes, but is not limited to, communication, leadership skills, human relations, and employability skills; and safe, efficient work practices.4 Respondent testified that things went well with Mr. Ledger because their skills complemented each other. Mr. Pentiuk testified that Respondent told him that Mr. Ledger provided most of the computer training in the CET class, and Respondent mostly taught employability skills, such things as the ability to get and keep a job, communication skills, and getting along with co-workers. Respondent agreed that he taught these employability skills, but emphasized that he also taught operating systems, and other software, whereas Mr. Ledger was a "hardware guru." At the end of the 2002-2003 school year, Mr. Ledger resigned his position and moved to Ohio, leaving Respondent as the sole instructor in the CET program. Upon learning that he would be teaching the class alone, Respondent told Mr. Pentiuk that he would require a new co-teacher or at least an assistant for the class and that he would need help in "getting up to speed with the gap" in his teaching knowledge of computer hardware. Mr. Pentiuk testified that Respondent also expressed insecurity about the returning students. Respondent feared they would be loyal to Mr. Ledger and would not accept Respondent as their sole teacher. In light of Respondent's expressed uncertainty about teaching the CET class alone, Mr. Pentiuk had discussions with Respondent in June 2003 regarding Respondent's teaching alternatives for the upcoming 2003-2004 school year. Mr. Pentiuk was interested in starting a business management and supervision program and moving Respondent into a teaching position in that program. However, this placement would have required Respondent to obtain state certification in business education at his own expense, and Respondent told Mr. Pentiuk he could not afford it because he was paying for a daughter to attend an Ivy League college. Mr. Pentiuk sought the advice of Mr. McCormick regarding Respondent's situation. In an e-mail to Mr. Pentiuk dated July 8, 2003, Mr. McCormick wrote, in relevant part: The tone of what [Respondent] is saying here [in an e-mail exchange with Mr. Pentiuk] indicates to me that giving him the CET class would be a recipe for disaster, especially given its current size. He is apparently looking for a way to continue doing not much of anything. For whatever reason, he does not believe he can handle the class or the curriculum by himself, even though that is what his current certification is in. I'm not sure about hiring him an assistant . . . even though Darryl is a good guy and I am sure he would be great with the students, I don't believe he has the technical background in networking that would be required. Any assistant teamed with Barry is going to end up doing the lion's share of the work, and I think that would be wrong-- especially if the assistant is not certified and qualified in this highly technical field. I think the bottom line is that Barry only wants to teach the soft "business employability skills," and really has no interest in CET. If he wants to teach the business curriculums, he needs to get off the dime and get certified! That is his responsibility, not ours. The fact [that] he feels that "it is really not the right time" and that he "really can't afford it right now" is his concern, not ours. There has been, and continues to be plenty of opportunity for him to do this. It would seem to me that with his future employability in the balance, he would not be fighting us on this issue. I don't know what else we can do to accommodate this teacher. If he is "uncomfortable" with either of the two options you presented to him, then perhaps we should try to find a teacher elsewhere who can meet our needs. I know this sounds cold, but after all, the goal is to provide our students with the best possible instruction . . . not make sure that our teachers don't feel "uncomfortable." This guy needs to get real. We have gone way beyond what is fair in offering him these options. He needs to decide if he wants to work here or not. My suggestion would be to place him in the business class this year, with the understanding that in order to maintain his teaching position, he must get certified in business, or at least be well on the way to getting certified, by next summer. In the meantime, we could advertise for a CET instructor who would be willing to take on the entire curriculum, not just the "employability skills." [ellipses in original] Mr. Pentiuk replied to Mr. McCormick that he shared many of the same feelings. At the hearing, Mr. Pentiuk testified that his reply did not mean that he agreed Respondent was not "doing much of anything," but that he did have concerns about Respondent's ability to pick up the CET class and teach it alone. Mr. Pentiuk ultimately did not follow Mr. McCormick's suggestion that Respondent be placed in the business class for the 2003-2004 school year, in part because the business class had not been advertised and the CET program had an ongoing enrollment. Mr. Pentiuk placed Respondent in the CET class, hoping that the training he had obtained in working with Mr. Ledger, along with formal training at the Cisco Systems Networking Academy program in the fall of 2003, would enable Respondent to handle the program. The School Board paid for Respondent to obtain Cisco training in Tampa and arranged for substitute teachers to take over the CET class on those days Respondent was in Tampa for training. Respondent completed the Cisco Certified Network Associate 1 ("CCNA"), Networking Basics, course of the Cisco Networking Academy Program on October 31, 2003. Respondent completed the CCNA 2, Routers and Routing Basics, course on December 9, 2003. Two more courses were required to obtain CCNA certification. Respondent testified that School Board policy required an instructor to take the first two courses then teach that material for a year before taking the second two courses and that he was never given the opportunity to complete the CCNA program. Mr. Pentiuk testified that problems began in Respondent's class at the outset of the 2003-2004 school year. Several students approached Mr. Pentiuk with complaints about the quality of Respondent's teaching. One irate adult student told Mr. Pentiuk that he intended to leave the CET program because he was not getting his money's worth.5 Late in the fall of 2003, near the Christmas break, Mr. Pentiuk contacted Georgianna McDaniel, the School Board's director of personnel services, to express his concerns that Respondent was not turning in his attendance records in a timely fashion, that Respondent did not have control of the students in his class, and that Respondent was not following the school's standard practices in preparing grades and documentation of his students' progress in the CET program. Ms. McDaniel directed Mr. Pentiuk to follow up on these matters and to note them on Respondent's final performance assessment for the school year. Respondent conceded that during the 2003-2004 school year, he was getting up to speed on the technology that he was supposed to be teaching to the students and often had to write down their questions so that he could research them and come in with answers the next day. In early 2004, the High Tech Central administration began to conduct informal observations of Respondent's class and to meet with him about his procedures, particularly as to taking attendance. Tracking attendance was a critical matter at High Tech Central because of the high percentage of its students who received Pell grants. Pell grants are calculated based on how many hours a student is in class, not merely on the number of days the student is present. Thus, teachers at High Tech Central were required not only to take attendance at the beginning of their classes, but to have students sign in and out of the classrooms in order to track their activities throughout the day.6 On the morning of February 19, 2004, Ms. Cooley was working in the front office when Respondent phoned in to say that he was running late. Ms. Cooley said that she would open Respondent's classroom and substitute until Respondent arrived. In a statement dated November 30, 2004,7 Ms. Cooley described her experience in Respondent's class as follows, in relevant part: While I was subbing in Barry Nevins' class one morning last year, as he was late coming to school, I noticed students were not focused on any assignments. I felt there was very little productive work being accomplished. One student pulled up the Internet and was reading current events; another one was checking the weather. I circulated to every student and simply asked what they were working on. Most students would responded [sic] they were working on projects. I asked if I could see the project information sheet, assignment sheet, project criteria sheet or rubric for the projects. None of the students had any written project direction sheets. I could not find any lesson plans or grade book. Two students walked in after 8 a.m. I asked if they would go to the office for a tardy slip. They responded that Mr. Nevins gives them extra time to start class.[8] I noticed the lab was full of pop bottles, food wrappers, and trash. While circulating, I asked each student if they had a career map or competency sheet. Not one student had a career map, assignment sheet, list of assignments, or any other tracking system. Students were not aware the program was divided into occupational completion points. As I approached two high school students sitting in the back room, I asked what they were working on. I noticed a small book placed inside the large textbook. I asked to see the book, and it was a hackers handbook.[9] One student in particular stood up-- in my face-- and yelled at me. I felt threatened; I felt he was rude and disrespectful. I radioed for the Student Affairs Specialist to discipline the student. Soon after the Student Affairs Specialist and this high school student left the room, Mr. Nevins arrived. I was scheduled to give an Employability Seminar to another group of students across campus, so I was in a hurry to leave Mr. Nevins' room. I thought he would have called me later in the day to find out what happened. He never talked to me until days later. He stated the students were upset and wanted to come talk to me. I told him I would be happy to schedule appointments for each one. He said they wanted to come as a class. I responded I felt it would be better to have a conversation with each student-- one on one; but, I never heard from Mr. Nevins about the students. I never received a copy of the letter until Ms. Garlock allowed me to read it last week.[10] * * * After this visit, I became very concerned about the lack of educational focus in the classroom. I visited his classroom a couple of weeks later, and I saw the same types of things happening. This time I asked Mr. Nevins about my concerns, and his responses made me question classroom management skills, paperwork, curriculum, lesson plans, etc. Every instructor has a student tracking system they use to maintain the data on each student. Whether they use competency lists, career maps, list of class assignments, etc. Every teacher does it a little bit differently. I do become concerned when a teacher does not have a tracking system or it is not consistent for every student in the class . . . . In a memorandum to Respondent dated February 26, 2004, titled "Classroom Management/Record Keeping Concerns," Ms. Cooley wrote as follows, in relevant part: The purpose of this memorandum is to summarize our conference held at 3:00 p.m. on February 20th, 2004 concerning issues related to your classroom management and basic record keeping practices. As you recall, Mr. Ronald Pentiuk, Director, High Tech Central, and Mr. Bill McCormick, Assistant Director, Operation, High Tech Central, also attended this meeting. During the conference, the following conduct was discussed: Improper attendance documentation on student tardies and early releases. Lack of up-to-date and complete career map documentation on each student. Lack of complete and accurate lesson plans. Lack of on task work demonstrated by students. Non-enforcement of school policies evidenced by not beginning class on time and allowing students to arrive late without proper sign-in documentation. I have reviewed your conduct as it relates to the established expectations as provided by our school's faculty handbook, our standard operating policies, and The School District of Lee County student attendance policies. This information was provided to you during new teacher orientation and training, standard in-service session, and at the beginning of each academic year during the pre-school sessions. I informed you that your conduct negatively impacted your students and our school in as much as inaccurate or incomplete recordkeeping and attendance documentation jeopardizes our ability to maintain federal Pell financial aid. This conduct also exposes the school to many unforeseen liabilities when we are unable to produce accurate student attendance records. And finally, non-enforcement of school policies on your part undermines the maintaining of good order and discipline throughout our campus by breeding contempt and noncompliance with school rules. During the conference, I provided you with the following directive(s) and assistance to take effect on or before Monday, February 23rd, 2004 and to continue throughout the remainder of the school year. Use/set up a teacher hard-copy grade book using the materials given to you 3 weeks ago. Keep accurate track of all tardies and early dismissals by documenting exact arrival and departure times. Print out all daily lesson plans. Update and maintain daily career maps for all students. Monitor students for on task behavior and use of proper classroom materials. I also informed you that your failure to comply with any of the above directives will result in another formal counseling meeting and letter, as well as placement on intensive assistance. In March 2004, the school's attendance secretary complained to Mr. McCormick that Respondent was not following the school's prescribed attendance procedure. On March 26, 2004, Mr. McCormick sent Respondent an e-mail reminding him of the correct procedure and directing him to follow it. On March 30, 2004, the attendance secretary complained to Mr. McCormick that Respondent had not turned in his attendance sheets by 9:00 a.m., as required by school procedure. Mr. McCormick sent an e-mail to Respondent, who wrote back to apologize, stating that he "got busy teaching a lesson and dealing with some interesting problems" and forgot to turn in his attendance. On April 14, 2004, Mr. McCormick observed Respondent's class. The CET lab was a large L-shaped room, approximately 800 to 900 square feet. There was a central open area with computer tables and computers and four auxiliary rooms each sectioned off by a solid half-wall from the floor up to about waist-level and a chain link fence from the top of the half-wall to the ceiling. These auxiliary rooms were generally referred to as "cages." The CET class was conducted for five hours each weekday from 8:00 a.m. to 1:30 p.m., with a half-hour lunch break. The students were required to remain in the classroom at all times, except during the lunch recess. There were rest rooms and a water fountain inside the CET classroom, and the school's administration expected that any short breaks from class work should take place inside the classroom. After his observation, Mr. McCormick sent an e-mail to Respondent with the following "feedback": As I arrived at about 8:30, you were obviously involved in taking care of a student issue in your back cage. However, the majority of the remainder of the class did not appear to be actively engaged in much useful learning activity. A group of 5 students were huddled up to the front right of the class visiting with each other. 4 other students were on their computers. At least two of them did appear to be viewing the online Cisco curriculum, the other 2 seemed to be surfing the web. 2 other students were setting up one of the back cages that had been disturbed by the maintenance men who are fixing your counter tops. At about 8:35 you assembled a group of students to the white board and began a discussion presentation on the different types of business models such as sole proprietorships, partnerships, etc. . . . You tried to engage the students in a discussion of the advantages and disadvantages of each. It did not appear to me that the students had any prior background prep on this subject such as a reading assignment. Although it could be argued that some knowledge of this topic might be useful to your students, I question the immediate relevancy of it given the wealth of more concrete and practical technical material available in the CET curriculum. I do commend you on getting the most out of what appeared to me to be a group of disinterested and unengaged students. You did your best to try to keep their focus. While you engaged these students in your discussion, two other students continued to work independently on their computers. I assume on the online curriculum. You also gave instructions to two other students to continue setting up the back cage. The two students in the back cage did not continue to set up the cage as you had instructed, but instead sat down in the back corner by a computer. They positioned a CPU so that it hid the monitor from my view. It was obvious to me that they did not want me to see what they were doing, although mainly what they were doing was visiting. Shortly before I left, I walked back unexpectedly to them, and saw that the one on the keyboard was attempting to log into the computer as an "administrator" but apparently did not know the correct password. They said they were attempting to get the computer connected to a nearby switch or server. Was this correct? I concluded my observation of your class at about 9:15. A few suggestions: Prior to a discussion presentation, make sure to give a prior preparation assignment so that the students can participate more fully in the discussion. If you are going to give a presentation on such a broad-based general knowledge topic such as the different types of business models, involve everyone in your class, regardless of their current place in the curriculum. There is no reason why the four other students should have been excluded from your discussion, even if they were not in the curriculum group you had assembled. Do not allow students to reposition computer equipment so as to mask observation of the monitors. Even if they were not up to anything inappropriate, it sure looked like it. Give desk work requiring a written assignment when you are tied up with a student issue in your office-- or at any other time you want to refocus their attention. Something as simple as completing the questions at the back of chapter xxx in their textbook would at least keep them somewhat focused on something other than visiting with each other. Focus your discussion presentations on the concrete technical material more directly relevant to the CET curriculum. Although what you covered does have some use and interest as background information, your time with the students in actual presentation should be devoted to your core curriculum material. I know it is sometimes difficult and frustrating to have someone come into your class for 45 minutes and make a few critical comments and suggestions based on that brief visit. Please take them in the [spirit] they are intended... as observations and suggestions. Later that day, Respondent sent the following response to Mr. McCormick's e-mail: Thanks for the feedback. I appreciate the time and effort you put into this. The student issue was quite urgent and unexpected. I had the class together and ready to go when [J.] showed up and we had to have the talk right away. It threw us off considerably as did the fact that . . . we weren't sure whether the counter-top guys were coming back today or tomorrow. Obviously the equipment they usually have to work with wasn't available. I purposely had a non-technical topic picked because I didn't know if I would have access to hardware for demonstration or practice. Also, business ownership is part of our curriculum (16.06)[11] and a very important part. I like your idea of a reading assignment to go along with it. I'll have to find something at the right level. The two students in the back were setting up the Cisco equipment (yes-- that involves connecting to the switches and routers) and were having some password issues with the computers (nothing major-- just a bit confusing). They would have been administrators on those computers. By the way, the computers in the cages don't go to the network or the Internet so they are "relatively" low risk. I also purposely wanted those low powered computers for this because they also won't run any popular games. Not much harm they can do in there. Interesting note-- I always tell them that hiding monitors is the quickest way to get me to come over. They sort of have the idea it doesn't work. The five students "visiting" in front would probably have been working with equipment in the cages under normal circumstances but knowing those guys I'm 99% sure they were talking about computers anyway. Lastly, this topic was covered by last year's students so there was no need for them to go through it again. When I do the A+ materials,[12] everybody participates because the advanced students need the review. The Cisco stuff can't be done by the beginners because they aren't ready so I give them something to read, review, research, etc. Quite a juggling act. Thanks again. It's great to have constructive feedback. On May 6, 2004, the day before he signed Respondent's 2003-2004 performance assessment, Mr. Pentiuk wrote a letter to Ms. McDaniel requesting that Respondent be placed on "performance probation." The letter noted that Respondent would receive "below expectations" ratings in "Assessment of Student Achievement" and "State, School and District Requirements," then stated: During this school year, Mr. Nevins has meet [sic] with me, Sue Cooley, Assistant Director for Curriculum, or Bill McCormick, Assistant Director for Operations, on numerous occasions and discussed the concerns relating to the above mentioned Accomplished Practices. The dates of these meetings, as well as observations were, January 13, 2004, February 20, 2004, March 24 and 26, 2004, March 30, 2004, April 15, 2004, April 2, 2004, and May 5, 2004. Administration has offered a myriad of suggestions and support to assist Mr. Nevins in improving his classroom environment, teaching techniques, teacher duties, and student assessment responsibilities. Attached is correspondence that has been conducted to show a flow of conversations reaping no positive changes in performance. In fact, unfortunately, there have been excuses and rebuttals, but performance has not changed. Ms. Cooley testified that Mr. Pentiuk consulted with Mr. McCormick and her when considering the request for performance probation. Ms. Cooley further testified that she and Mr. McCormick concurred with Mr. Pentiuk that Respondent needed to be placed on probation because Respondent continued to get the same things wrong and his performance was not improving. After receiving his performance assessment, Respondent contacted Donna Mutzenard, the president of the Teachers Association of Lee County to act as his union representative in a meeting with Mr. Pentiuk and Ms. Cooley about the assessment. Shortly after this meeting, Respondent learned of Mr. Pentiuk's letter to Ms. McDaniel requesting performance probation, which would include the initiation of the School Board's "intensive assistance program." The intensive assistance program ("IAP") is designed to rehabilitate poorly performing teachers. When the principal of a school determines that a teacher is experiencing difficulty in some area of performance, the principal must inform the teacher of these performance problems and provide assistance in the area of deficiency. Frequent feedback, peer coaching, and opportunities for training and development, such as peer observation and outside training courses, are among the items of assistance the principal is expected to provide and document. If assistance at the school level does not solve the problem, then the superintendent of schools authorizes Ms. McDaniel to appoint an IAP team, which includes the teacher's immediate supervisor and other persons with knowledge of the curriculum and of the teacher's deficiencies. Ms. McDaniel testified that she also tries to appoint one person without personal knowledge of the teacher. The IAP team's first task is to meet with the teacher in order to review: the nature of the program; the teacher's job expectations and performance standards; past performance assessments and other documentation of performance concerns and assistance; and the teacher's experience, certifications, and current assignment. The team also schedules individual diagnostic performance observations and conferences with the teacher followed by meetings of the entire team. At the conclusion of the IAP team's eighth meeting,13 the team makes a recommendation for action to the superintendent of schools, who must decide whether the teacher has raised his performance to standards, requires continued assistance, should be reassigned to a more appropriate position, or be dismissed from employment with the School Board. Ms. Mutzenard discussed the matter with Ms. McDaniel, arguing that there was insufficient documentation to justify appointment of an IAP team for Respondent. Ms. Mutzenard felt that one final performance assessment with two grades of "below expectations" did not meet the criteria for the IAP. Ms. McDaniel consulted with the superintendent of schools, reviewed the record, and ultimately agreed with Ms. Mutzenard. By letter to Mr. Pentiuk dated June 10, 2004, Ms. McDaniel denied the request for performance probation. The letter stated, in relevant part: It is clear by the documentation you presented that there are performance issues regarding Mr. Nevins' deficiencies in Accomplished Practice Indicators 2 and 12 (Assessment of Student Achievement and State, School & District Requirements) as indicated by the Below Expectations ratings he received on this year's Final Performance Assessment. It is also noted that the school could receive audit findings in the accreditation process for the incomplete Career Maps and attendance records. As Mr. Nevins has been put on notice regarding his need for improvement in these areas, it is my recommendation that you give him every opportunity to correct these deficiencies for the first quarter of the 2004-05 school year. Please continue to monitor and document his performance on a regular basis. If there is not a complete turnaround in the fulfillment of professional obligations expected of Barry, he will be placed on performance probation in the second quarter. Despite his belief that Respondent needed the assistance of the IAP immediately, Mr. Pentiuk accepted Ms. McDaniel's decision and set out to help Respondent at the school level during the first semester of the 2004-2005 school year. Mr. Pentiuk discussed matters with Respondent, whom Mr. Pentiuk described as "always [having] an answer for everything," meaning glib excuses for poor performance and a refusal to accept fault in his performance. Mr. Pentiuk advised Respondent to "buckle down and do your job" during the upcoming semester. Mr. Pentiuk assigned Ms. Cooley and Mr. McCormick to advise, assist, and observe Respondent. All three administrators conducted observations of Respondent's class and met with him to share their observations. Ms. Cooley worked with Respondent on his career maps and his overall assessments of student performance. In his observations, Mr. Pentiuk was disturbed by the fact that Respondent's students, though they always appeared to be working on projects, never seemed to know where they were on their career maps. Some students were not even aware that they had career maps. Mr. Pentiuk also observed a student sleeping in Respondent's class. Respondent was not aware of the sleeping student until Mr. Pentiuk pointed him out. Mr. Pentiuk's overall impression was that "not a lot of structured instruction is taking place" in Respondent's class. These incidents and observations further convinced Mr. Pentiuk that Respondent required more help than could be provided at the school level. During the first semester of the 2004-2005 school year, Ms. Cooley continued to work with Respondent to assist his job performance. She lent Respondent an instructional videotape keyed to the Florida Performance Measurement System's "summative observation instrument," a chart used by classroom observers in the Lee County school system to chart instances of positive and negative teacher performance. The tape discussed the document step by step, showing examples of an effective teacher at work in the classroom. Ms. Cooley described it as a "wonderful, wonderful tape" to show a teacher the right way to run a class. Ms. Cooley told Respondent to watch the tape, then to sit down with her and talk about it. Five days later, Ms. Cooley needed the tape to show to a group of beginning teachers. She went to Respondent's classroom to retrieve the tape and asked him if he had watched it. Respondent told her that he "never got to it." On October 6, 2004, Ms. Cooley conducted an observation of Respondent's classroom. She entered the class at 12:15 p.m. and stayed for about 30 minutes. Ms. Cooley's notes of the observation read as follows, in relevant part: Upon entering, I noticed one student reading the "Life Styles" section of the newspaper. Mr. Nevins quickly got up from his lap top and told me he was helping the student find a job. Mr. Nevins stated he was preparing this student's resume. When I questioned why Mr. Nevins was writing the resume, Mr. Nevins stated the student needed a job as he had been in this program a short time. When I approached another student and asked what he was working on, he stated he was waiting until 1:30 p.m. I found out he was not a current student in class without the proper visitor's pass. When asked, none of the students saw their career maps. Some have been in the program for two semesters. Chips, muffins, gatoraide [sic] bottles were at the computer stations and throughout the lab. When I asked students what they were working on, all the responses were the same. They all responded by telling me they were working on projects. I asked Mr. Nevins about the various projects. I asked for a copy of the project assignment sheets, criteria sheets, or rubrics. Mr. Nevins replied that the students were developing their own projects. My observation was the students were doing whatever they wanted and were given no direction or instruction. Checkmarks in grade book were used for attendance, but no tardies or leave earlies were noted . . . I am concerned the students lack direction, instruction, and detailed curriculum assignments. In late October 2004, Ms. Cooley contacted Bob Gent, the CET program teacher at High Tech North, another Lee County school, and asked him to visit and observe Respondent's class. Ms. Cooley thought it would help Respondent to discuss his class with a successful teacher whose program mirrored his own. Arrangements were made for Mr. Gent to visit Respondent's class on November 3, 2004. On November 2, 2004, less than 24 hours before Mr. Gent's scheduled visit, Respondent e-mailed Ms. Cooley with the following message: "I've rethought the situation and I'd rather not go through with this tomorrow. I will let you know if I decide to reschedule." Ms. Cooley testified that Respondent never provided a real explanation for his sudden cancellation of Mr. Gent's visit. On November 3, 2004, Cathy Race, High Tech Central's information technology specialist, sent an informational e-mail to all personnel of the school regarding several computer- related issues. Ms. Race reminded the school's staff that they should not bring in personally owned computers for use on the school's network because of the risk of viruses, nor should they allow non-district computers belonging to contractors, vendors, auditors, or partnering agencies onto the network before Ms. Race verified that the computer has modern, updated anti- virus software and up-to-date patch levels. The next day, November 4, 2004, Respondent allowed a student to connect his personal computer to the district network, resulting in the importation of a virus into the network. Mr. McCormick sent an e-mail to Respondent about the incident that concluded: "This incident reflects poorly on our school and your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy. Please provide an explanation as to why you allowed this to occur and how you intend to prevent it in the future." Later on November 4, 2004, Respondent sent the following answer to Mr. McCormick: I have already talked to Cathy Race about how this has happened. A student brought in a computer of his own to work on and another student was helping him fix it. A part of this problem was that drivers had to be located. The student, against the policy, but with good intentions got online and located the drivers but apparently got more than he bargained for. I talked with Cathy Race about setting up a meeting with [district director of information technology support] Dwayne Alton about the difficulties the computer use policies are causing in running my program. My policy at the beginning of last year was to not allow students to bring in computers to work on. You changed it after a student came to see you and complained. I wouldn't have had this problem if we kept my original policy. "your ability to adequately control and monitor your classroom, or at the very least, your inability to understand the District computer use policy?" Do you really think that every time there is a computer use problem that this is what it means? You were at a meeting last year where Dwayne Alton said that we were not considered a real problem for the district. Put a bunch of computer geeks together and some "challenges" are inevitable. Ask any computer teacher in the district. I find the whole statement-- but especially the "your inability to understand" line very insulting and disrespectful. Expect to be hearing more about that sort of usage and tone very soon. If we were so inclined there were two commands we could have used to release the IP address and you never would have found the computer in here. The students and I took immediate responsibility for what happened. I bring that up because I'm not so sure that taking responsibility for unfortunate events that take place under you is very popular around here. Mr. McCormick testified that he did not know what to make of Respondent's statement that he should expect to hear more about his usage and tone, and that it was not his intent to insult Respondent. Later on November 4, 2004, Mr. McCormick responded to Respondent as follows: Was the student aware of the policy at the time, and is he/her now? If the student was aware of the policy, but choose [sic] to ignore it, I would expect some sort of discipline action or referral. If the student was not aware of the policy, I would want to know why. I understand the unique challenges faced by your class, however I don't know how much clearer the district policy could be with regards to connecting "guest computers" to the network. The resulting manhours and resources needed to remedy these types of problems leave us no choice but to treat them serious [sic]. If you feel that you are unable to [adequately] monitor your students when they are working on their computers they have brought in, I certainy [sic] agree that we should revisit the policy of allowing them to do so. I'll let you make that call and will support you if you decide against it. Respondent did not directly respond to the questions raised by Mr. McCormick's second November 4, 2004, e-mail. However, on November 8, 2004, Respondent filed with the School Board an equity complaint, alleging that he had been discriminated against on the basis of his religion and his sex.14 In the narrative portion of the complaint, Respondent recited his work history at High Tech Central, including the allegation that except for the Cisco training, he had received "no support or encouragement from the administration" upon taking over the CET program after Mr. Ledger's departure. The following excerpt from the complaint set forth Respondent's essential allegations: The problems developed last year when [Ms. Cooley] had to watch my class for thirty minutes one morning and she did not do a very good job (see attachment).[15] I have been an express target of Administration's negative attention since then. They are often very confrontational and negative toward me and completely ignore points I make to show my efforts. My lessons and class work in [CET] fully correlate to the State Standards for my course. Administration has received lesson plans, unit planning documents, and assessment information to support this. My grading and progress reports are up to date. Furthermore, several of my students have been placed in industry related employment which is the ultimate goal and stated mission of the school. This information has not showed up in any documentation I have received from administration. Administration has gone to great lengths to reprimand me for not utilizing career maps (a particular tracking device) on a day to day basis in my class. I update them periodically based on unit completion but do not place a strong day to day focus on them because students are more interested and motivated by Industry Certification requirements which also very strongly relate to the career map's requirements. Students are made aware of the link. The case has been made by Administration that because I do not utilize and emphasize these career maps my teaching is unstructured and of low quality. A particular technique that has been used to evaluate my job performance is for an Administrator to come in to my classroom, seek out a student who may be having a bad day, may have just gotten reprimanded, may be somewhat overwhelmed by a particular section of material, etc. and badgering that student for negative information about me and the class. I don't think the proper way to judge our Administrators would be to go to a Faculty meeting and seek out the teachers who are rolling their eyes and snickering. I have been told that I am being judged on this "measure of satisfaction." Besides being a contract violation the selection and measurement technique used is highly subjective and arbitrary. Again, the case has been made, without logical connection, by Administration that because I do not meet these satisfaction standards my teaching is unstructured and of low quality. In my Department (Business Technology) the Department Chair and two other teachers who are National Board Certified (all three with twenty plus years of experience-- and all female) have not been required to work with the career maps. They have not been using them for at least the last several years and they have not received any type of reprimand. They use "competency sheets" which is quite similar to the system I use (and I also utilize the periodically updated career maps). In addition, these teachers are not subject to the same degree of scrutiny, evaluation, and criticism as has been shown in my case. Students are not encouraged to "snitch" and basically proper procedure is followed. The Administrators have little trouble in treating these other teachers with respect. Therefore I am asserting that Mrs. Cooley has selected me for "attention" based on my being male and Mr. Pentiuk and Mr. McCormick has [sic] been supportive of her. I do not rule out that my being Jewish, a New Yorker, and a Union Rep had an effect on their decision making. Administration has used this as the cornerstone of an overall effort to undermine and discredit my teaching efforts and abilities. The remainder of the complaint catalogued the negative effects "this situation" has had on Respondent, including stress and being treated as "a slacker and unprofessional." Respondent also discussed the "highly insulting and disrespectful" e-mail exchange of November 4, 2004, with Mr. McCormick. At the request of Becky Garlock, a School Board investigator, Mr. Pentiuk, Mr. McCormick, and Ms. Cooley prepared written statements in answer to Respondent's allegations.16 Mr. Pentiuk's statement was as follows, in full: This letter is in reference to the equity complaint filed by Barry Nevins. I regret that Mr. Nevins has these strong feelings about being picked on. The administration at High Tech Central is concerned about the structure of his program and his delivery relating to the competencies and Career Map for the [CET] program. We have recommended that Mr. Nevins be placed in the intensive assistance program and feel that he has the ability to become an effective teacher. We have also asked for a fellow [CET] instructor from High Tech North to come, and Mr. Nevins felt that it was not a good time. We are ready for Mr. Nevins to find the time to become a good teacher. I feel that these allegations are with no credibility and I wish that Mr. Nevins would exert the energy toward his program that he has toward this complaint. Mr. McCormick's statement discussed Respondent's problems in complying with attendance reporting policies, and further discussed the November 4, 2004, e-mail exchange regarding Respondent's student introducing a virus into the computer network. As to Respondent's main point, that his class was being unfairly singled out for administrative attention, Mr. McCormick wrote: As I recall, the administrative team began looking more closely at the CET program during the 2nd semester of the 03/04 school year when an adult student withdrew from the program and made some disturbing statements concerning the quality of the instruction and classroom management practices of the instructor. The student was being given a withdrawal interview by Ms. Soto, one of our guidance counselors. Because of the veracity of the comments made by the student, she referred the student to me. I interviewed the student and determined that he should make his comments known to Mr. Pentiuk, which he immediately did. Mr. Nevins was informed of the statements and given a chance to respond. He immediately dismissed the student as being unreliable and not trustworthy. His comment was "students will say anything." Nonetheless, the student appeared to be credible and this was our first real indication that the CET program may need some monitoring. Further discussions with the guidance department revealed other students had in recent months been dissatisfied in much the same way. On another front, Mr. King, the Student Affairs Specialist had also been indicating problems with attendance not being accurately recorded in CET. For example, he indicated that tardies and absences were not being recorded when necessary. This was confirmed with the attendance secretary. These indicators pointed to the fact that the quality of instruction and classroom management practices warranted some attention on the part of the administration. Upon some cursory reviewing of Mr. Nevins' academic and attendance records, it was apparent that he was in need of some assistance. Any inference that Mr. Nevins is being singled out for unwarranted attention by the administration of this school for any other reason but for legitimate concerns about classroom management practice and the quality of the instruction, is completely false. This administration wants Mr. Nevins to be successful, and we have demonstrated that through our actions. Most of Ms. Cooley's statement was devoted to explaining the events of February 19, 2004. Besides her version of those events, detailed at Finding of Fact 32 above, Ms. Cooley made the following general statements about Respondent and the school's administrators: Administration has supported Mr. Nevins in numerous ways. Thousands of dollars went into his lab for new desks and equipment. It was a state of the art lab. In fact, he even mentioned it was better than Edison College's computer lab. Administration sent Mr. Nevins to Cisco training (in Tampa, I think). This training took weeks and was very expensive. The school paid for his travel, food, lodging (if needed) and his class in order to help support him in his teaching efforts. Mr. Nevins even commented that some of the students would be upset with his teaching methods when the other teacher moved away. Mr. Pentiuk was extremely understanding, patient, and supportive of Mr. Nevins. * * * This is my 29th year in education. I have never had a teacher file a grievance. I feel my role is that of a support system for the instructors in my school. I share with the instructors when they are doing a good job and I remiss [sic] in my duty if I did not share my concerns. I believe Mr. Nevins is a very intelligent man. I believe he is very knowledgeable about computers. My objective is to help him be successful in the classroom, so he can help students be successful in the workforce. At the hearing, Respondent at least implied that the decision to recommend that he be placed in an IAP, and the ultimate decision to recommend his dismissal, was in retaliation for his filing an equity complaint against the three named High Tech Central administrators. The evidence does not support such a suggestion. Mr. Pentiuk, who in any event retired before the completion of the IAP process, had only a vague recollection of the complaint's allegations. Mr. McCormick never saw the equity complaint before he testified in this proceeding and knew none of its details, or even whether he was named in the complaint. His statement, described at Finding of Fact 64, was written at Ms. Garlock's request and was not based on Mr. MCormick's having read the complaint. Ms. Cooley was "shocked" by the equity complaint because she believed that her actions toward Respondent, while sometimes critical, had always been professional. Respondent's allegation of retaliatory intent on the part of anyone in the administration of High Tech Central is not credible. By letter to Ms. McDaniel dated November 15, 2004, Mr. Pentiuk renewed his request that Respondent be placed on performance probation. The letter reviewed the administration's efforts to assist Respondent during the first semester of the 2004-2005 school year, including Respondent's refusal to cooperate in Mr. Gent's visit to his class. By letter dated December 16, 2004, Superintendent James Browder informed Respondent that, pursuant to the recommendation of Mr. Pentiuk and Ms. McDaniel, Respondent would be placed on a plan of assistance. Mr. Browder wrote that he would appoint an assistance team to work with Respondent during the second semester of the 2004-2005 school year. Mr. Browder informed Respondent that the first meeting would take place in early January 2005, and that he could name a representative to attend the meetings on his behalf. On the same date, Ms. McDaniel hand-delivered the superintendent's letter to Respondent in Mr. Pentiuk's office. The superintendent delegated to Ms. McDaniel the task of choosing the members of the IAP team. She selected Mr. McCormick and Ms. Cooley, because they were Respondent's direct supervisors at High Tech Central and were aware of the curriculum and Respondent's deficiencies. Ms. McDaniel testified that she had appointed six IAP teams before this one and that her standard procedure was to appoint both assistant directors of the school. Ms. McDaniel also chose Suzanne Roshon, the School Board's coordinator for technical and career education, as an objective outsider without prior knowledge of Respondent, or his classroom setting. Ms. McDaniel acted as coordinator and facilitator for the IAP team meetings. Ms. Mutzenard was an observer at the IAP team meetings as Respondent's representative.17 The IAP team held its organizational meeting on January 13, 2005. Respondent and Ms. Mutzenard were present. In her role as coordinator, Ms. McDaniel chaired the meeting, explaining the steps in the IAP process. There would be seven weeks of observations in Respondent's class with three observations taking place each week. The observations would be unannounced. Not more than one observation could take place in a single day. The observers were not to talk to Respondent or the students during the observations, and Respondent was to act as though the observer were not present. The observers were not to discuss their observations with each other prior to the weekly team meetings. Respondent was directed to turn in his lesson plans each week so that the observers would know what to expect when they came into the classroom. Ms. McDaniel's role was to determine whether the observers had common concerns about Respondent's classroom methods, and to ensure those common concerns received emphasis at the team meetings. Ms. McDaniel testified that, at this initial meeting, it was clear that Respondent was not happy to be involved in the IAP process. He believed that he could document his program's success and that he should not be there.18 Ms. McDaniel emphasized the need to maintain a "positive attitude in a positive learning environment" because it was clear to her that Respondent did not have a positive attitude about the scrutiny he was receiving. Ms. Cooley conducted the first recorded observation, on January 21, 2005, at 12:30 p.m. As she entered the classroom, Ms. Cooley noted that two students were sitting at picnic tables outside the classroom and that Respondent walked to the door and told them to return to class. One student left the classroom carrying a length of cable then returned for a bowl of water and left again. A second student walked in and took another bowl of water out of the classroom. Ms. Cooley testified that the students had caught a stray dog on campus. They used the cable to tie the dog to a tree until school was out. Respondent knew what was going on with the dog and was not requiring the students to sign in and out of the class. Ten students were watching a video about the founder of Apple computers and events in the industry during the 1980s. Two students were working on a computer in the back of the room and another was working in one of the cages. Later, one of the two students in the back put his head down on the desk. After the video, Respondent asked the students what had changed over the years. Students shouted out answers, and Respondent corrected them for talking all at once. Respondent then asked another question. One student, Keith McNeil, dominated the discussion. One student received a call on his cell phone and walked out of the classroom. Another student was using his Palm Pilot and another was reading a book. Though the class would not be dismissed until 1:30 p.m., Respondent stopped teaching and ordered the students to clean up the classroom at 1:05 p.m. Ms. Cooley was surprised that Respondent had not prepared his class to be on its best behavior given that he knew there would be three observations that week. In her follow-up notations and recommendations to Respondent, Ms. Cooley observed that there were too many distractions in the classroom, that not all the students were focused on the video, that the video itself was too long and too old for meaningful use in the CET program, that a couple of questions were insufficient after spending over 30 minutes watching the video, and that 25 minutes was too much time for classroom clean-up. Ms. Cooley later testified that a computer class is a clean environment that should take only a few minutes to clean up at the end of the class session. Mr. McCormick conducted his first observation on January 24, 2005, at 8:00 a.m. He noted that only ten out of the fifteen students present had signed in on the attendance log. Respondent divided the class into three groups. While Respondent worked with one group, the students in the other two groups had no direction. One student took a phone call during classroom instructional time. While Respondent was reviewing material with one group, some students in that group were surfing the Internet.19 There were vending machines just outside Respondent's classroom door, and students from the class were going out to buy food and drink from the machines. Respondent had complained about the location of the machines, and they were later moved a bit farther away from the classroom door. Mr. McCormick conceded that the machines were too close to the classroom, that they were a temptation to Respondent's students and that they were a distraction to the class when anyone used them. However, Respondent was nonetheless remiss in allowing students to freely go in and out of the classroom except during the lunch break. Ms. Roshon made her first observation at noon on January 26, 2005. Ms. Roshon disclaimed any expertise in the CET program, but testified that she has observed the classes at both the High Tech Central and High Tech North campuses and was familiar with the CET performance standards. When she entered the classroom, Ms. Roshon saw no structured activities taking place. Several students were sitting around talking in the middle of the room and others were in two of the cages. Shortly thereafter, Respondent walked over to the group in the middle of the room and told them they were going to discuss Chapter 13, which caused some grumbling among the students. Respondent began his lecture with ten students, one of whom was reading a book and one of whom was writing. Ms. Roshon observed that no one was taking notes on Respondent's lecture. Respondent asked questions in an effort to engage the class, and there was some give and take among Respondent and two or three of the students. Several times during his lecture and PowerPoint presentation, Respondent told the class, "You won't need to know this" or "This isn't important." Ms. Roshon questioned why Respondent would teach material that was not important. One of the students asked a question. Respondent suggested that the student do some research on the topic. The student got up to go to a computer. Respondent asked him to do the research later, but the student ignored this instruction and went to the computer. He looked up and printed some information, then handed the printout to Respondent, who thanked him. Ms. Roshon observed one student sleeping during the lecture. Respondent made no effort to wake up the student. Several students were wearing hats, which is forbidden by School Board policy. Several students had sodas in the class. High Tech Central has a policy prohibiting food and drink (except for bottled water) in the classroom.20 Students seemed to come and go as they pleased during the lecture, without signing in or out of the classroom. The students in one of the cages were talking, laughing, and walking around throughout Ms. Roshon's observation, leading her to wonder if they were engaged in any sort of educational activity. One of the students in the cage laughed loudly after looking at someone else's computer screen. On February 1, 2005, at 8:30 a.m., Ms. Cooley conducted her next observation. There were fifteen students in the class, one of whom remained in one of the cages throughout the observation. As Ms. Cooley entered, she observed that Respondent was just starting a PowerPoint presentation on "Objectives, Attitude, Generic Troubleshooting," comprising issues such as not overlooking the obvious, performing research, checking simple things, and writing things down. Respondent read the PowerPoint slides to the students and asked questions such as, "Why would you need to write things down?" Respondent was still going through the PowerPoint presentation when Ms. Cooley left the classroom at 9:10 a.m. In her written report, Ms. Cooley noted that one student had his shoes off and another yawned very loudly during Respondent's presentation. Ms. Cooley recommended that Respondent reduce the time he spends on PowerPoint and get the students actively engaged in the class. She expressed a concern that everything she observed in the class was "generic, low level, basic material . . . I have not observed a lesson on A+, Cisco, or any specific networking material." She observed that the PowerPoint material was far below the level of the majority of the class who were returning students and that nothing she witnessed in the class corresponded to the lesson plan filed by Respondent. 85. On February 3, 2005, from 12:50 to 1:30 p.m., Ms. Roshon conducted her next observation. When she entered the classroom, Ms. Roshon noted that the students were sitting in groups talking, but not about anything related to their class work. Respondent was in one of the cages, but came out into the classroom when he saw Ms. Roshon. Respondent directed one group of five students to work on their class work, which they did. Respondent answered some of their questions. Ms. Roshon observed that students in the back cage became very loud. One student walked out of the classroom, bought a candy bar, then walked back in without asking Respondent's permission, or signing the attendance log. Students were eating and drinking at their computer stations. At 1:15 p.m., Respondent told the class to begin cleaning up. The clean-up was finished by 1:20, and the students spent the remaining ten minutes standing around talking about extraneous matters. Ms. Roshon observed that there was very little structure in the classroom, and students did not appear to know what they were supposed to be working on. She suggested that Respondent require the students to keep a daily journal of what they did in the class, and that Respondent should regularly check the journals and provide feedback to the students. Respondent did not implement this suggestion. 88. On February 4, 2005, from 9:20 to 10:00 a.m., Mr. McCormick conducted his next observation. Mr. McCormick initially criticized Respondent's weekly lesson plan as simply a list of topics with no detail as to how Respondent intended to teach those topics. Mr. McCormick noted that thirteen students were present, but that he could not determine whether they had signed in because Respondent had no sign-in sheet posted at the classroom door. For security purposes, High Tech Central required all staff, faculty, and students to wear photo identification badges around their necks or clipped to their clothing. During Mr. McCormick's observation, a school security guard entered the classroom to check the identification badges. Of the thirteen students present, five did not have their badges, leading Mr. McCormick to conclude that Respondent had not checked the students' identification at the beginning of class as required by school policy.21 Mr. McCormick noted that three students were working independently on computers in the main part of the lab, and that each student was on a different web site. One of the students was looking at telephones on Best Buy's web site, which Mr. McCormick believed could have been related to a class assignment. However, another of the students was looking at a "Twilight Zone" web site, clearly unrelated to the CET class. One of the three students left the classroom for ten minutes without signing out or obtaining a pass from Respondent. Another group of three students was working in the right-side cage. Two were on web sites and one was working on a curriculum test program. One of these students left class for twenty minutes without signing out or obtaining a pass. The remainder of the class was in the left-side cage, engaged in a group discussion. Mr. McCormick described it as follows: I was unable to determine the subject of discussion as it was unfocused and was not being led in any discernable or deliberate way. Students wandered in and out of the cage at random during the discussion. Overall impression of this activity was that it was unfocused and random. Students did not appear engaged in any meaningful way. At about 9:40 a.m., Respondent asked the group of students in the lab to "come up with some good scenarios and good stuff for the students in the cage." Mr. McCormick assumed that Respondent wanted to give some direction to the discussion going on in the cage and was relying on other students to supply the scenario. Mr. McCormick testified that he thought it showed poor preparation for Respondent to ask students to make up scenarios on the spot for a class discussion. Mr. McCormick noted that students were still making frequent trips outside to the vending machines and that Respondent allowed food and drink in the classroom. Mr. McCormick testified that the prohibition on food and drink is in the faculty handbook, and that the administration "harp[ed] on it" at every faculty meeting. Besides the potential for spilling food or drink on the computers, food and drink created a sanitation and pest control problem. In his written observation report, Mr. McCormick concluded that Respondent's classroom "presents a very unprofessional appearance." At the hearing, Mr. McCormick called the classroom "a mess." It was disorganized, strewn with snacks and drinks and littered with computer parts. On February 7, 2005, the IAP team met with Respondent, Ms. McDaniel and Ms. Mutzenard to review the observations made by the team members up to that point. The team members shared their observations with Respondent, including positive feedback and suggestions for improvement. Ms. McDaniel summarized the suggestions as follows: Lesson Plans need to be detailed so an observer or substitute can clearly determine who does what when. Classroom Rules need to be addressed and maintained including sign in/sign out, food and drink not allowed, students focused on time on task, cell phone use, students walking in and out of classroom for snacks, etc. in order to assist with classroom management strategies. Organizational tool to be created/maintained for student progress-- career map. Mrs. McDaniel will email Mr. Nevins a template of a lesson plan. Mr. Nevins can take advantage of other options; such options might include Mr. Nevins observing other instructors at other schools teaching similar programs or someone observing Mr. Nevins. At the hearing, Ms. McDaniel testified that Respondent was very defensive about the observations. He was argumentative and disagreed with what the observers said they saw in his classroom. Respondent refused to sign the summary minutes of the IAP team meeting. Rather, he requested an opportunity to respond to the minutes with additional information. Ms. McDaniel could not recall that Respondent ever followed up with any additional information. On February 9, 2005, at 12:55 p.m., Ms. Cooley conducted her next observation. As she entered the classroom, Ms. Cooley saw a student talking on a cell phone. Respondent called out to the students to be seated so that he could go over their test answers. Of the eleven students present, two remained in the back cage area. Respondent read out the first test question and several students called out answers. Respondent asked them not to shout out the answers. He read the next question, and several students called out answers. This time, Respondent did not correct the students, nor did he correct them when they shouted out answers to the next five questions. Finally, Respondent said, "Guys, one at a time." A student yelled out, "Clean up." Respondent continued talking, but students talked over him. Some students began standing around, waiting for class to end. In her comments, Ms. Cooley wrote that Respondent "needs to be consistent with his classroom policies and procedures." She noted that the seven minutes allotted for end-of-class cleanup was more appropriate for a computer class than the fifteen minutes she noted in an earlier observation. On February 10, 2005, from noon to 12:40 p.m., Ms. Roshon conducted her next observation. Respondent called the class to attention to hear a lecture by a fellow student, Keith McNeil, on the Linux operating system.22 Ms. Roshon acknowledged that the student appeared to be very knowledgeable, but she was uncomfortable with his "lording it over" the other students that he knew this material and they did not. She also wondered if all the students were required to give such lectures, or if this student was lecturing for some particular reason. Ms. Roshon noted that Respondent's questions made it apparent that he did not know the software or the material the student was presenting. She was concerned that this made it appear to the class that Respondent knew less about the class subject matter than did the student. She was more concerned that Respondent had not reviewed the software for appropriateness before he allowed the student to teach it to the class. Ms. Roshon noted that the student giving the lecture was drinking from a bottle of soda in front of the group. She commented that if Respondent was going to give students leadership opportunities, he should require them to act as role models. She also noted that students "still get up, move around, use the rest room, etc. at random. Seem to come and go as they please." In her written report of the observation, Ms. Roshon stated to Respondent: "You are very fortunate to have a student with so much knowledge and what appears to be a good rapport with your class. BUT, this student was doing EXACTLY what I have been waiting to see YOU do-- TEACH." Ms. Roshon saw Respondent go around the classroom and speak to individual students, but did not observe Respondent teaching the class as a whole. 104. On February 11, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. When Mr. McCormick arrived in the class, Respondent was grading tests that the students had just taken. Mr. McCormick noted that the students appeared "unengaged" in any activity related to the CET curriculum. One student was talking on the phone to a Staples store, with a sales brochure in front of him, and three other students were playing "Doom 2" on an old Macintosh computer. Respondent returned the tests to one group of students then commenced an oral review of the questions and answers. Mr. McCormick noted that Respondent conducted the review in distracting proximity to another group of students. Mr. McCormick also noted with disapproval that Respondent referred to the multiple choice test as "multiple guess." One student left the class early without signing out. Another student had a two-liter bottle of soda on his desk, which Respondent eventually asked the student to remove. Clean-up activity began at 1:16 p.m., fourteen minutes before the end of class. The clean-up consisted of about one minute of straightening chairs, after which the students were unengaged until 1:30 p.m. Earlier in the day, Mr. McCormick had received a report that someone in Respondent's class had visited a pornographic web site. Mr. McCormick decided to investigate the matter because the school district's firewall filter should have prevented such activity. After the class was dismissed, Mr. McCormick asked a student in Respondent's class to show him the web site. The student did so and arrived at a site displaying what Mr. McCormick described as pornographic photos. Mr. McCormick realized the site was available because the web address did not contain the key words that the district's firewall is set up to block. At the hearing, Mr. McCormick emphasized that he did not believe Respondent would knowingly allow his students to access pornographic web sites. Mr. McCormick's criticism was that Respondent did not know, which was emblematic of Respondent's inability to maintain control of and know what was going on inside his classroom. Mr. McCormick suggested that Respondent position the computer monitors in the class to give himself maximum observation ability from a central position. Mr. McCormick testified that many students would position themselves so that their monitors could not be seen unless an observer was standing directly behind them. On February 16, 2005, the IAP team met with Respondent, Ms. McDaniel, and Ms. Mutzenard. At the outset, Respondent stated that he would submit his written responses from the previous team meeting at the next team meeting on February 28, 2005. As Ms. McDaniel testified, no such written responses were ever supplied by Respondent. Ms. Roshon then gave a summary of her February 10, observation and also stated that she had observed the CET teacher at High Tech North. Based on these observations, she had the following suggestions for Respondent: require students to prepare a notebook based on the chapter notes and software the students use on a daily basis, which could be used as a trouble-shooting reference; require students to sign in and out for bathroom breaks; and require students to keep a daily log of their work, upon which Respondent could check and comment. Respondent defended himself regarding some aspects of Ms. Roshon's observation. Mr. McNeil, the student who gave the Linux lecture, was fighting a sore throat and had asked Respondent for permission to drink a soda during his talk. Respondent also stated that he trusted the student not to do anything inappropriate and, thus, felt no need to preview the software prior to the student's lecture. Mr. McCormick then described his observation of February 11, 2005. He agreed with Ms. Roshon that a daily log would be helpful for Respondent to keep track of his students' progress. Mr. McCormick also agreed with Ms. Roshon's suggestions that students be required to sign in and out for restroom breaks and that they be required to keep trouble-shooting notebooks. Respondent disagreed with requiring students to keep a notebook. Ms. Cooley described her observation of February 9, 2005, and made a particular point of her concern that Respondent was inconsistent on the matter of allowing students to shout out answers. Ms. McDaniel summarized the deficiencies in Respondent's performance as noted by the IAP team, including: lack of consistency with rules and procedures; lack of consistency with students signing in and out; removal of all games from classroom computers; and arranging the classroom computers for maximum viewing capability by Respondent. Mr. McCormick stated that there were students still in the CET program who had completed all their occupational completion points and a lengthy discussion ensued regarding Respondent's tracking of students' progress. Ms. Cooley stated that Respondent had not turned in revisions to a Council on Occupational Education program reports that were due during the previous school year.23 Respondent promised to turn in the revisions on February 22, 2005. Respondent also promised to bring to the next IAP team meeting his grade book and all the career maps, or other tracking devices for his CET class, neither of which the IAP team had seen at this point. He also committed to removing all games from the computers in his classroom. Ms. McDaniel testified that by the time of the February 14, 2005, meeting, she perceived that Respondent was angry about the IAP process. It appeared to Ms. McDaniel that Respondent did not believe that he or his students needed to follow the rules and procedures established by the School Board or High Tech Central. Mr. McCormick testified that by this time he was "astounded" that the IAP team's observations and comments were the same every week. Respondent was not correcting the items noted by the team and was very defensive in the team meetings. 117. On February 22, 2005, from 8:15 to 8:45 a.m., Ms. Cooley conducted her next observation of Respondent's classroom. Respondent was working on computer assembly with five students in one of the back cages. Three students were in the other back cage. One of these students was looking up computer parts prices on the Internet and told Ms. Cooley he was seeing where the market was going. Thirteen students were present in the class, but only eleven had signed in. Two of the eleven had not indicated the time they arrived. No students were wearing identification badges. Six students were in the main computer lab. Two of them were reading the novel Great Expectations for another class and continued reading throughout Ms. Cooley's observation. Ms. Cooley asked them about their career maps. They replied that they knew nothing about career maps. When Ms. Cooley asked them how they knew which competencies they were working on, they told her they went "chapter by chapter." Ms. Cooley tried to redirect the students who were doing outside work. Respondent was so focused on the group he was working with that he did not notice what the other students were doing. Ms. Cooley noted that, based on Respondent's lesson plans, she could not tell one group of students from another. Not one student was working on assignments identified in the lesson plan. She concluded that the students "are not on task, not on track." 121. On February 23, 2005, from 12:45 to 1:30 p.m., Mr. McCormick conducted his next observation. A music video, bearing no apparent relationship to CET class work, played over and over again on a classroom projector throughout the observation period. Three students were on shopping web sites and one was on E-Bay. Respondent had assigned them to learn how to acquire computer parts and build the best computer possible for $1,500. Mr. McCormick noted that this was legitimate CET class work. Respondent was circulating through the room. Mr. McCormick observed that it was still difficult to see the computer monitors in the back cages from the main part of the classroom. One student was reading a booklet that was not related to the CET program. A two-liter bottle of soda was on the classroom floor and an open bottle of soda was on a student's desk. Once more, all work stopped at 1:15 p.m. for clean-up activity that took about one minute. In the follow-up remarks to his written observation report, Mr. McCormick noted the unprofessional appearance and distracting effect of playing music videos in the classroom. He again suggested that Respondent stop wasting the last fifteen minutes of class and plan activities to keep the students busy until the dismissal bell. Mr. McCormick again told Respondent that he must enforce the rules against food and drink in the classroom. 125. On March 2, 2005, from 10:10 to 10:50 a.m., Ms. Roshon conducted her next observation of Respondent's class. When she walked into the classroom, Ms. Roshon noted that Respondent was sitting and talking with a group of four students. The conversation was apparently not related to class work because Respondent jumped up when he saw Ms. Roshon. He told her that half the class was "missing," without explaining where the students were, and that two of his students had placed in the "Skills USA" competition.24 Respondent announced that it was time to go over the test. Some students asked, "What test?" It transpired that not all of the students present had taken the test. Respondent spent eight minutes looking for the test. The group who had been talking with Respondent when Ms. Roshon entered continued their conversation about the relative merits of "a small house" versus "a condo." Three other students were working in the back cage, and Ms. Roshon noted that she still could not see their monitors from the classroom. When she approached the students, one of them turned off his monitor. Ms. Roshon also noted that the sign-in sheet was still not being used. Respondent gathered two students to go over their tests. They discussed the questions and answers aloud although another group of students was still taking the test. Ms. Roshon noted that Respondent told a student who was withdrawing from the class to take the test "for old times sake." Respondent then had this student correct his own test and those of the other students. Ms. Roshon observed that the student made some critical remarks about his classmates' performance on the test. Ms. Roshon positively noted that, when one student was confused about an issue, Respondent had the students go on their computers to find the answer. However, she also noted that one student appeared to become bored with the test review, rolled his chair away from the group, and turned on his MP3 player with earphones. The student even played "air guitar" near the group reviewing the test, and Respondent said nothing. In her written comments to Respondent, Ms. Roshon wrote, in relevant part: One big concern I have with the structure of today's activity is that you have this huge classroom and yet all of your students were packed into one small area at the back of the room. It would have made more sense to me that you would have taken the students you were going over the test with to an area of the classroom that would have been quieter and would have caused less distraction to other students. It was also a VERY relaxed atmosphere and not as conducive to feedback and interaction from students as it could have been. * * * I did have trouble following your lesson plan . . . . Once again, I don't know how the students know what they are to be doing. I didn't see any evidence of log books or checklists. * * * My concerns still are: How do students know what to work on. Class activity seems to start AFTER I walk into the room. Students seem to wander around however they feel like. On March 3, 2005, at 8:15 a.m., Ms. Cooley performed her next observation of Respondent's class. When she arrived, a film on PC navigation and commands was being shown. One student was working on his laptop computer. One student was reading sports web pages on his computer, while another surfed web pages on computer parts. A group of students worked in the back cage. Respondent's lesson plan stated only "lab work," which was so vague that Ms. Cooley could not tell one group from another. Respondent showed the film throughout Ms. Cooley's observation, which prompted her to suggest that Respondent show films in shorter segments and get the class actively engaged sooner. Also on March 3, 2005, at 9:30 a.m., Ms. Cooley attended an "attendance hearing" for one of Respondent's adult students. High Tech Central policy regarding adult attendance provides that after four absences, the student is to be advised that his absences jeopardize his financial aid. After five absences, the teacher is to have a conference with the student. After eight absences, the teacher is to advise the student that two more absences will result in an administrative review and possible withdrawal until the start of the next semester. After ten absences, the teacher is to complete an attendance documentation form and give it to the school's student affairs specialist, who then schedules an administrative review, or "attendance hearing." An adult student with ten accumulated absences may be withdrawn and lose credit for that semester, depending on the outcome of the attendance hearing and the reasons established for the absences. Dan King, the student affairs specialist, convened the hearing with an adult CET student who had 16 absences since January. Respondent was not present at the hearing, but sent to Mr. King the student's career map and an adult attendance documentation form. Mr. King asked the student why he had missed so many days, noting that the student was on kidney dialysis. The student stated that he goes to dialysis before and after school and that Respondent never asked for notes regarding his absences or even asked why he was absent so frequently. Mr. King directed the student to go back and retrace his steps regarding the dates he had missed because many of those absences could have been excused because of illness. Ms. Cooley criticized Respondent for his failure to hold the required conferences with the student, or to make the required referral to Mr. King after the tenth absence. At the attendance hearing, the student told Mr. King that the CET class was completely different when an observer was in the classroom. Mr. King showed the student his career map. The student stated that he had seen the blank career map back in August when he started the CET program and that this was just the second time he had seen it. The student stated that Respondent had never reviewed it with him, although Respondent had checked off many competencies as completed. The student was surprised to see everything he had accomplished. Ms. Cooley noted that the career map is supposed to be a motivator for students to show their accomplishments and track their competency completions and that it was improper for Respondent not to review the career map with the student. 135. On March 4, 2005, from 12:50 to 1:30 p.m., Mr. McCormick conducted his next observation of Respondent's class. He saw four students grouped together in the front of the class. One was working on a laptop computer, one was working on class-related questions, one was using a cell phone, and the fourth was playing with a portable CD player in his lap.25 Some students were working in the back cage on projects though it was still difficult to observe their monitors from the classroom. Respondent was circulating around the classroom. Mr. McCormick observed five cups and soda bottles throughout the classroom, including one on Respondent's desk. One student had an entire fast food meal of a sandwich, French fries, and a soft drink spread out at his computer workstation. The student ate and drank throughout Mr. McCormick's observation. Mr. McCormick observed one student get Respondent's attention by calling out, "Nevins!" After discovering they had mistakenly printed a document to another teacher's printer, two students left the CET classroom to "apologize" to the other teacher. These students did not sign out or inform Respondent that they were leaving. Work stopped and "clean up" commenced at 1:00 p.m., a full half-hour before the end of class. Mr. McCormick's written comments on this observation were as follows: Mr. Nevins must design teaching activities so that students are engaged in learning activities throughout the day. No visible order to the way the material is presented. Much too much wandering, visiting and playing has been observed in this classroom. Suggest planning activities that will keep students busy until dismissal bell. Clean- up in this class only takes about 1 minute (as it is now structured), so save this until a few minutes before 1:30. Mr. Nevins must enforce classroom rules about food and drink-- but apparently is unable or unwilling to do so. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. Mr. Nevins must never allow students to address him by his last name only. This shows a complete lack of respect for the status of the teacher in the classroom. At the hearing, Mr. McCormick testified that he was "incredulous" that the problems with food and drink were still going on. The problem was so easily corrected that he had to conclude Respondent could not, or would not enforce the rule. Mr. McCormick believed that such simple classroom management issues were the last thing that should be dominating discussion in the IAP team meetings, but that the IAP team could never get past enforcement of the most basic classroom rules and employment of the most basic classroom management skills in attempting to assist Respondent. The IAP team met on March 7, 2005, to review the team's observations since the last meeting and to offer recommendations to Respondent. Ms. McDaniel and Ms. Mutzenard were present. Mr. McCormick, Ms. Cooley, and Ms. Roshon each gave an oral report of the observations described above. After Mr. McCormick described the playing of music videos in the class, Respondent stated that the music was "something different" for the students in the afternoon and that it was not distracting. He cited "brain based research" to the effect that music helps set the tone for the class and assists in learning. Ms. McDaniel pointed out that there is a difference between music and music videos and that the latter are not to be played in the classroom. Respondent also stated that he felt he was being picked on about the question of sodas in the classroom. Mr. McCormick stated that it was simply a question of school policies that Respondent must enforce, and that Respondent's classroom was so relaxed and uncontrolled that Respondent had difficulty maintaining order and focus. Respondent acknowledged that bending the rules causes problems, but also contended that students sometimes learn more in his relaxed environment. Respondent was once again asked to bring his grade book and career maps, or other student tracking system to the next IAP team meeting. He had been asked to bring these items to the March 7, 2005, meeting but failed to do so. At the hearing, Ms. McDaniel testified that after the March 7, 2005, IAP team meeting, she continued to feel that Respondent did not have a positive outlook on the process. Of greater concern was her growing conviction that Respondent was deliberately not following the instructions and recommendations of the IAP team. She did not share this conviction with the IAP team because she did not wish to influence the objectivity of their observations. Mr. McCormick conducted his next observation on March 10, 2005, between 12:40 and 1:30 p.m. Twelve students were present in the classroom. Five students were working on computers in the main lab, three students were working on projects on the back cage, and two were working with Respondent in a side cage. Two students were asleep in the front of the classroom with their textbooks open and their heads down on their desks. Mr. McCormick testified that the students woke up at some point during his observation. When Respondent saw Mr. McCormick enter the classroom, he left the cage and came out into the main lab and began circulating among the students. Mr. McCormick noted that the monitors in the back cage were still positioned to make observation difficult from the main lab. He also noted that the "Doom 2" game was still loaded on the old Macintosh computer in the classroom. Student Keith McNeil approached Mr. McCormick and was "very forceful" in trying to determine why Respondent was being observed. Mr. McNeil explained at length that MP3 players were integral to the CET program and could be used as data storage devices. Mr. McCormick noted that every student he had observed using an MP3 player in Respondent's class was listening to music. Mr. McCormick also observed that Mr. McNeil was a very bright student and that Respondent seemed to employ him as an informal teacher's aide, helping Respondent to run the CET program. Mr. McCormick's written comments on this observation were as follows: No visible order to the way material is presented. Too much wandering, visiting, and playing going on in this classroom. Students don't seem to ever be on task at anything for more than a few moments. Mr. Nevins must also enforce school District policy on using portable music devices on campus, especially during class. On March 11, 2005, at 9:30 a.m., Ms. Cooley attended an attendance hearing for another of Respondent's CET students. This student had 14 absences. Respondent did not attend the meeting, but provided the student's career map and certificates of completion to Mr. King before the meeting. As did the student at the previous attendance hearing, this student told Mr. King that he had not seen his career map since Respondent showed him a blank one at the beginning of the course. The student stated that Respondent never reviewed his progress with him. He had never received any certificates of completion, although the career map submitted by Respondent showed that the student had completed three occupational completion points meaning that he should have had three certificates. The student felt unmotivated. He believed he was wasting his time and not accomplishing anything in Respondent's class. He told Mr. King that he might have felt more motivation had he known his progress in the program. The student told Mr. King that he wanted to make up some of the time he had missed, but that he could never get Respondent to commit to a specific date and time. After a while, the student became discouraged and stopped asking Respondent about making up the time. Ms. Cooley testified that by now she had conducted five observations and attended two attendance hearings, and she was frustrate d because the same things cropped up at every observation: food and drink, name badges for students, the failure to keep career maps, or some other tracking device for student progress. Ms. Cooley performed her next observation of Respondent's class on March 22, 2005, at 8:45 a.m. She noted that while Respondent lectured on how to set up a parts table on Microsoft Access, one student was typing, one student was sleeping, two were looking at a computer board, and one was playing with his cell phone. Students were calling out numbers and items to place in the Access spreadsheet. Food wrappers were on the desks. Respondent was wearing an MP3 player around his neck. He told the students to get started on their assignment, but they walked to the back cages and did not work on the assignment. Mr. McCormick observed Respondent's class on March 23, 2005, between 9:15 and 10:00 a.m. Twelve students were present in the class. Three students were working on projects in the cages. The other nine students were clustered around six computers. Mr. McCormick noted that there were plenty of computers in the classroom and that each student should be assigned his own computer. He observed that when students gather around a few computers some are just watching rather than actively participating in the class activity. In this instance, only two of the nine students appeared to be on task. The others were talking and "wandering around." Mr. McCormick noted that students were leaving the CET classroom to attend other classes, but were not signing out on the classroom attendance log. He checked the log and found that it had not been used since March 14, 2005. Mr. McCormick noted that at 9:30 a.m., a student walked into the classroom with a bag of chips and began eating them while working with another student. Respondent did nothing, although he did later pick up a soda bottle from a workstation and dispose of it. Another student listened to an MP3 player during the entirety of the observation. Mr. McCormick did note that all the old Apple computers had been disconnected thus, disposing of the "Doom 2" game problem. In his written comments to this observation, Mr. McCormick yet again stated that Respondent must enforce School Board policies on food and drink in class, the use of portable music devices in class, and the use of the attendance log. The IAP team convened its next meeting on March 24, 2005.26 Also present were Ms. McDaniel and Ms. Mutzenard. As in the other meetings, the three IAP team members reviewed their observations and made comments and suggestions to Respondent for improving his performance. As in the other meetings, Respondent reacted defensively. When Mr. McCormick commented that there was too much "wandering, visiting, and playing" going on in the classroom, Respondent asked Mr. McCormick not to say that his students did not appear to be learning because there was no data to prove that assertion. The lack of structure in Respondent's classroom was a common criticism. Ms. McDaniel attempted to explain to Respondent the need to draft and use coherent, detailed lesson plans, if only for the eventuality that a substitute would need such a plan in Respondent's absence. Ms. McDaniel told Respondent that a substitute would be "clueless" if forced to use Respondent's lesson plans.27 Using Respondent's method of teaching Microsoft Access as a point of discussion, the team attempted to make Respondent understand the need for some tangible artifact to demonstrate that the students have mastered a given OCP. Respondent answered that the majority of students were pleased with his methods. At the conclusion of the meeting, Ms. McDaniel once again reminded Respondent to bring his grade book, career maps and tracking sheets to the next meeting. Ms. McDaniel testified that at every meeting, Respondent had an excuse for not bringing these materials. He would say that the files were at his home, or back in his classroom. On April 4, 2005, at 12:20 p.m., Ms. Roshon conducted her last observation of Respondent's class. She observed six students in the main lab, one of whom was sleeping. Respondent walked over to the sleeping student and woke him. Three students in the back cage were talking about "witnesses" and "getting caught." Respondent approached Ms. Roshon and explained what each group was doing. She noted several soda bottles, cups, and chips around the room. Ms. Roshon observed a student go to the back cage to get Mr. McNeil to come out and assist him. She thought this remarkable because Respondent was circulating through the classroom and would logically have been the person to approach. Ms. Roshon later concluded that Mr. McNeil's assistance was needed because the question had to do with the Linux system, about which he had lectured during Ms. Roshon's February 10, 2005, observation. Ms. Roshon observed a conversation among several students regarding the capacity of an iPod to download the music on the computer. She noted that a student had his iPod plugged into the computer leading her to conclude the student was downloading music during class. One student did not seem involved in the class. Respondent engaged this student by demonstrating how to share files between computers. Ms. Roshon was favorably impressed by Respondent's method in this instance. Some students knocked at the locked back door of the classroom and were let in by students inside. The students did not sign in, which led Ms. Roshon to wonder whether the attendance log was being used at all. She checked and saw that the sign-in sheet had not been used since March 14, 2005. Mr. McNeil approached Ms. Roshon and attempted to discuss a letter he had sent to the school district's administrators in defense of Respondent. Ms. Roshon told him that she was not at liberty to discuss the matter.28 Mr. McNeil then proceeded to complain about the "new rules and regulations" in the class, by which he meant the long-standing but seldom enforced prohibition on food and drink in the classroom. On April 5, 2005, Mr. McCormick conducted his last observation of Respondent's class. Mr. McNeil approached Mr. McCormick and attempted to question him about his situation with Mr. Wiseman, as described in footnote 28 above. Mr. McCormick told Mr. McNeil that he was there to observe the class and would speak to Mr. McNeil at another time. Though he still noted sodas and a bag of chips in the classroom, Mr. McCormick observed that the activity for the day seemed to be well planned and that the students appeared to be actively engaged and on task. One student was working on an assignment for another class that was related to his high school graduation requirement. Ms. Cooley conducted her last observation on April 6, 2005. She noted soda bottles and drinks in the class and saw one student drinking a soda. Mr. McNeil was teaching the class along with Respondent. On April 6, 2005, at 1:45 p.m., the last IAP team meeting was convened. Ms. McDaniel and Ms. Mutzenard were present. This meeting was held in the CET lab, so that Respondent would have no excuse for failing to produce his grade book and career maps. After the observations were reviewed with Respondent, Ms. McDaniel asked Respondent to show the team his career maps, grade book, and tracking sheets. One member of the team asked Respondent how often he went over the career maps, and he stated that he did so every two weeks. Ms. Cooley asked Respondent why neither student at the two attendance hearings had ever received or reviewed a career map in Respondent's class. Respondent stated that every student had the opportunity to ask him for a copy, but that he did not give them out to everyone. Ms. McDaniel expressed concern that the Council on Occupational Education would review the school in November and would have to be shown these career maps and this grade book. The school's accreditation and its Pell grants would be placed at risk if it could not document what is being taught in the classroom. Ms. McDaniel noted that all the career maps were written in the same color ink. She testified that the maps looked as though they had all been completed at the same time, rather than at different points during the semester as students completed their various OCPs. The minutes of the meeting indicate the concerns raised as the team reviewed Respondent's materials: Mrs. McDaniel made numerous attempts to see if the career map matched and aligned with the gradebook and tracking sheets. Mrs. Roshon and Mr. McCormick would check the gradebook while Mrs. McDaniel would check the career maps. OCP completions were not recorded in gradebook. Quarter grades were missing. No actual dates were written in the career maps. Dates did not aligned [sic] in gradebook with career maps. Yellow attendance sheets were not found.29 Some tests did not have a grade on them. Only chapter test grades were recorded in gradebook. No lab work grades were recorded. No rubrics were used to grade projects. There were numerous questions on the correlation of grades. Mrs. McDaniel stated the career maps should prove the competency completed; but these competencies recorded with a month and year did not align with the gradebook. Some career maps were missing. Mr. Nevins stated he might have left them at home. The gradebook did not reflect what was in the student folders and career maps. . . . Ms. McDaniel testified that it was not possible to look at Respondent's grade book and correlate the numbers therein with any OCP. There were test grades, but no indication of what test was given. The tests in the student folders did not align with anything in the grade book. Ms. McDaniel concluded the meeting and stated that the team would schedule a meeting to make a recommendation to the superintendent as to Respondent's status. In fact, the team met with Ms. McDaniel and the school's new director, Robert Durham, in the administrative offices of High Tech Central immediately after their meeting with Respondent and unanimously recommended that Respondent's employment be terminated. As to her recommendation, Ms. Roshon testified that she told Respondent "that if I were a teacher and I knew I was being observed and that I had an opportunity to make . . . some pretty simple changes to my classroom and what went on in it, that I would have made every effort possible to do that, and that I felt like Mr. Nevins hadn't done that." At the final meeting, Ms. McDaniel presented the option of extending the IAP process, but Ms. Roshon did not believe that more time would make any difference in Respondent's classroom. The IAP process had already lasted for eight weeks, and Ms. Roshon had seen no difference "in classroom management, in teaching style, in anything within the classroom." She believed that Respondent had been given a full and fair opportunity to make significant changes and either chose not to make those changes, or was unable to change. In any event, she believed that Respondent was not an effective teacher. Mr. McCormick testified that Respondent is a very intelligent man, understood the purpose of the IAP process, and further understood the criticisms and advice he was receiving from the observers. However, Respondent did not accept the legitimacy of the criticism, or the need to change his classroom methods. Mr. McCormick recommended termination because he believed that Respondent's classroom shortcomings were very serious, and he did not see any evidence of improvement during the IAP process nor any willingness to make changes in the classroom. Mr. McCormick agreed with Ms. Roshon that extending the IAP process would be extremely unlikely to make any difference in Respondent's job performance. Ms. Cooley recommended termination and testified that she "felt bad about it, because I felt that I honestly tried to help change the situation by the many attempts of telling him what I saw and what I observed." She believed that Respondent is a very intelligent man, but not a teacher. By letter dated April 11, 2005, Mr. Browder notified Respondent that he was being suspended with pay and benefits, effective immediately, pending the outcome of a School Board investigation.30 A predetermination conference was held on April 28, 2005, to give Respondent an opportunity to respond to the IAP team's concerns regarding his competency to teach. Present at the conference were: Respondent and his legal counsel, Robert Coleman; Cynthia Phillips-Luster, the School Board's director of professional standards, equity, and recruitment administrator; and Paul Carland, then the School Board's attorney. By letter dated May 3, 2005, Mr. Carland notified Mr. Coleman that the School Board had found probable cause to terminate Respondent's employment. In his defense, Respondent raised several issues, both substantive and procedural. Respondent alleged in his equity complaint that he had been "an express target" of negative attention since Ms. Cooley substituted in his class on February 19, 2004. At the hearing in the instant case, Charlotte Rae Nicely, the former financial aid administrator at High Tech Central, testified that Ms. Cooley was "very vengeful" and "had it in" for Respondent. However, Ms. Nicely had been reassigned to a teaching position following the federal audit of the school's Pell grant program and believed she had been made a scapegoat by the High Tech Central administration. Ms. Nicely did not believe that Ms. Cooley was a good administrator and alleged that she carried grudges against other teachers. Though she claimed she had "chosen to forgive" the High Tech Central administration for its treatment of her, Ms. Nicely was a less than credible witness, not only because of her personal feelings about Ms. Cooley, but because of her limited knowledge of Respondent's teaching practices. The evidence did not establish that any administrator at High Tech Central, or the School Board had any personal animus against Respondent for his union activities, his religion, his place of origin, or any other reason. The school's administrators were concerned about Respondent's performance well before Ms. Cooley's experience substituting in Respondent's class, and the evidence was persuasive that Respondent was in no way "singled out" for any reason other than his job performance.31 Respondent contended that the process did not give him adequate notice of the areas of his performance requiring improvement or correction that there were no "uniform scoring criteria" used by the IAP team to evaluate Respondent's performance. This contention is without merit. While the observers used different instruments to record their observations, and their observations varied in some particulars simply because the observers came into the class on different days, there was a remarkable overall consistency in the observations and recommendations. Respondent did not enforce classroom discipline regarding such matters as food and drink and MP3 players. He did not follow proper administrative procedures in monitoring attendance. He did not file proper lesson plans. If he did track his students' progress and performance, he did not do so in an intelligible, coherent fashion, and he did not keep his students aware of their progress in any consistent way. Too often, no teaching appeared to be taking place at all in Respondent's classroom. Students appeared to be doing as they pleased. Any claim that Respondent did not know what was required to improve his performance is disingenuous and cannot be credited.32 Respondent notes that Subsection 1012.34(3)(d), Florida Statutes,33 provides that a teacher holding a professional service contract who is charged with unsatisfactory performance must be notified he is being placed on performance probation for the following 90 calendar days during which he is expected to demonstrate corrective action. School holidays and school vacation periods are expressly excluded from the 90-day period. Throughout the 90-day period, the teacher must be evaluated periodically and apprised of the progress achieved, and provided assistance and in-service training opportunities to help correct the performance deficiencies. Respondent further notes that, at the initial IAP meeting, Ms. McDaniel stated that Respondent would be the subject of observations for seven weeks, that there would be three observations per week, and that the observations would be 30 to 45 minutes in length. She also told Respondent that the IAP team would meet weekly and he would receive a signed copy of the minutes of the meeting. Respondent states that the IAP process lasted only 84 calendar days, from January 13 to April 6, 2005, and that nine of those days were school holidays. The IAP team met only six times, on January 13, February 7, February 16, March 7, March 24, and April 6, 2005. The IAP team failed to conduct three observations each week and at least two of the observations exceeded 45 minutes in length. The IAP team did not meet with Respondent every week of the process, and Respondent did not receive signed minutes of the meetings every week. Respondent claims that the School Board's failure to comply with the legal requirements for termination of a teacher on a professional service contract were not followed and failure to follow its own IAP procedures necessitate dismissal of the Petition. In fact, Respondent was provided notice that he was being placed on performance probation via Dr. Browder's letter dated December 16, 2004. Thus, the period of evaluation lasted a period of 93 calendar days, from December 16, 2004 to April 6, 2005, excluding 18 days for winter break, Martin Luther King Day, Presidents' Day, and spring break. The School Board complied with the express requirements of Subsection 1012.34(3)(d), Florida Statutes. The School Board also substantially complied with the procedures described by Ms. McDaniel at the first IAP meeting and set forth in its written IAP materials. The IAP team members conducted a total of 20 observations (not counting Ms. Cooley's attendance at two student attendance hearings), rather than the 21 observations promised by Ms. McDaniel. This was due to the fact that Ms. Roshon broke her arm and missed one week's observation. The IAP team met only six times because Respondent called in sick on March 16, 2005, forcing the cancellation and rescheduling of one meeting. Neither of these minor deviations from the schedule of events had a substantial impact on the IAP process. Neither Respondent nor his representative, Ms. Mutzenard, lodged a contemporaneous protest regarding these alleged procedural failings. In fact, they agreed to combine two weeks of observations into one IAP meeting in order to make up for the cancelled meeting. Ms. Mutzenard, who has represented union members in at least ten IAPs, testified that, although seven weeks of observations with three observations per week is the officially stated practice, this practice "has not always worked. Because of scheduling conflicts with the teacher and with other members of the team and myself and with meetings and conferences and all of that type of thing, there is [sic] some weeks we just can't schedule something." The process is sometimes extended to accommodate schedules. Ms. Mutzenard testified that the 45-minute limit on observations is simply a time management issue: if one person conducts a two-hour observation, another observer could be hampered from coming into the classroom. Ms. Mutzenard was positive about the flexibility of the process. She testified that scheduling was freely discussed at the meetings and that neither she nor Respondent objected to the dates of the meetings or the number of observations. Ms. Mutzenard testified that the IAP process is usually successful so long as the teacher follows the IAP team's suggestions. She has been involved in other IAPs that resulted in transfers and terminations, but stated that in the case of termination recommendations, the teacher usually resigns. Ms. Mutzenard believed that the IAP process would be extended for another eight weeks after April 6, 2005, to give Respondent more time to work on "a few minor things" such as the food and drink problem and to correct his record keeping. Her view was that, aside from being disorganized as to paperwork, Respondent presented no insurmountable problems and should have been given more time in the IAP process.34 Ms. Mutzenard stated that record keeping is unrelated to a teacher's competence and that Respondent's students were doing well in obtaining jobs. However, she conceded that she had seen no objective data regarding the employment rate of Respondent's students and that Respondent himself was her source of information.35 Ms. Mutzenard also conceded that Respondent did not really believe he should have to stop his students from bringing food and drink into the classroom. She discussed the issue with Respondent and he agreed that he should follow the school policy though the testimony from the IAP team members makes it clear that Respondent never seriously enforced the prohibition on food and drink.36 Respondent presented the testimony of several witnesses besides Ms. Mutzenard and Ms. Nicely. Richard Kennedy, now retired, was a School Board employee for 29 years and ran a special needs exploratory after school program at High Tech Central. This program brought students identified as high drop-out risks to High Tech Central to explore the option of vocational education. The population in the program consisted mostly of middle school special education students ranging from educable mentally handicapped to intellectually above average. Respondent was a paid volunteer in the program for about five years, teaching a web design class. Mr. Kennedy conducted no formal observations of the class, but did drop in on the class frequently. Mr. Kennedy testified that Respondent was a good teacher and was popular with the students. However, Mr. Kennedy conceded that his special needs program was very different from the regular day programs such as CET and that he had very little knowledge of why Respondent was suspended or of the IAP process in which Respondent was involved. Dennette Foy is the district coordinator for business and technology programs at Edison College and is responsible for hiring adjunct instructors such as Respondent. She is Respondent's immediate supervisor at Edison College, in charge of assessing his performance and offering him contracts for successive semesters. She opined that Respondent is a "very adequate teacher." Greg Meisel is a technology teacher for the School Board and runs a computer lab supporting the instructors at Edison College. Mr. Meisel was Respondent's lab assistant at Edison College. Mr. Meisel believed that Respondent was a competent, effective teacher. Respondent's delivery was good and he respected and cared about his students. Mr. Meisel's only knowledge of Respondent was in a college setting. He was not aware of Respondent's classroom management skills at High Tech Central, how Respondent tracked attendance in his classes, or whether Respondent enforced School Board policies in his classroom at High Tech Central. Ms. Foy's and Mr. Meisel's testimony is of limited use because of the differences between teaching at the college and high school level, particularly in a vocational education program such as the CET class. Ms. Cooley pointed out that many of the students at High Tech Central could never meet the academic requirements to be admitted to college, and have in fact been unsuccessful in a traditional high school setting. Students in a college classroom are self-selecting, highly motivated, independent thinkers, whereas students at High Tech Central tend to require greater supervision, discipline, and one-on-one assistance. The same teacher may be highly successful at the college level and be unfit to teach vocational educational classes. Richard Oglesby was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, he worked in the television department at CompUSA and credited Respondent with telling him about the job opening and for giving him the skills necessary to obtain the job. While a student in the CET class, Mr. Oglesby competed in the Skills USA competition and made it past the regional to the state level. He testified that he considered Respondent a friend and had recently attended a movie with Respondent. Mr. Oglesby called Respondent a very good instructor, who followed the textbook, gave tests, kept the students apprised of their academic progress, and managed the class well. Mr. Oglesby testified that Respondent made some attempts to forbid students from listening to MP3 players, or having food or drink in the class. However, he also admitted that students in fact brought MP3 players and food and drink into the class with virtual impunity, and that he never saw Respondent discipline a student for these violations. Mr. Oglesby stated that he always signed in and out of class, but could not say whether other students did. He could not remember seeing anyone sleeping in the class. Keith McNeil, as noted above, was a student in Respondent's CET class during the 2004-2005 school year. At the time of the hearing, Mr. McNeil was the head of the software and video game department at CompUSA. Respondent helped Mr. McNeil obtain his job. Mr. McNeil's loyalty to Respondent was evidenced by the fact that three days after Respondent was suspended, Mr. McNeil received a two-day out-of-school suspension for spinning a glass table 180 degrees and chipping it after Respondent's replacement asked Mr. McNeil to stop sitting on the side of his desk. Mr. McNeil attributed this outburst to the tension and frustration he and the rest of the class felt after Respondent left. During the 2005-2006 school year, Mr. McNeil was officially disciplined twice for insubordinate, disrespectful behavior toward Respondent's successor. Mr. McNeil testified that Respondent was the best teacher he ever had. He described Respondent's technique as nontraditional and "rather lenient." Respondent told the students not to bring food and drink into the class, but the students ignored this admonition and brought the food and drink into the class anyway. Respondent would "chastise" the students, but did not otherwise discipline them. Similarly, Respondent told students not to use cell phones in the class, but students would take calls and walk out of the room to speak. Mr. McNeil testified that students would work on material for other classes in Respondent's class. Some people listened to MP3 players. Students would play computer games during class. Respondent would not discipline these students beyond turning off their computers. Mr. McNeil testified that Respondent "made a big point" of having students sign in and out of the class, which directly contradicts the observations and testimony of every member of the IAP team. Mr. McNeil denied that he ever took on the role of teacher in the class, or that Respondent allowed him to take over the class. People "flocked" to him to ask questions because of his greater knowledge: And so a lot of times I would come up with something, I would realize something; and in the time when, you know, if somebody was done with their work and Barry wasn't giving any form of instruction or anything, then I would say, "Oh, hey, check this out or check this out," and then sometimes like two or three other guys would comment and listen and we'd talk and stuff. * * * It wasn't that frequent. It was just, you know, sometimes like-- sometimes like, you know, we'd finish up and then we'd have like an hour or so or sometimes we might only have a couple minutes or something like that. It wasn't like I would be able to give keynote speeches. (emphasis added) While Mr. McNeil was conducting these sessions, Respondent would be doing "paperwork or something off to himself," or perhaps circulating among the students. In summary, Respondent would forego "an hour or so" of teaching time to allow the students to do as they pleased. This testimony confirms the observations of the IAP team regarding the rudderless appearance of Respondent's classroom. Both Mr. Oglesby and Mr. McNeil appeared to be highly motivated students who succeeded in spite of Respondent's lack of effort in the classroom. They liked the very aspects of the class that the IAP team found most problematic such as the lack of discipline and structure. While such a free-form atmosphere might not prove detrimental to bright, self-motivated students such as Mr. Oglesby and Mr. McNeil, the evidence established that the majority of students in the CET program required a structured classroom that Respondent was unable or unwilling to provide. Respondent testified on his own behalf, recounting his educational experience, employment history, and his certifications. He reviewed his evaluations and described the CET class. However, Respondent was silent as to the IAP process, leaving unrefuted the testimony of Ms. McDaniel, Mr. Pentiuk, Ms. Cooley, Mr. McCormick, and Ms. Roshon. In summary, the School Board established that Respondent was unable or unwilling, when charged with running a classroom unassisted, to maintain student discipline, enforce well-established School Board and High Tech Central rules, teach in a coherent, organized fashion, or perform the administrative duties required of faculty at High Tech Central.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order upholding the suspension of Respondent and terminating Respondent from his position as a teacher with the Lee County School District. DONE AND ENTERED this 31th day of August, 2006, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31th day of August, 2006.
The Issue Whether Petitioner established “just cause” to discipline Respondent as a teacher.
Findings Of Fact Since 2004, Ms. Gardner has been employed by the Glades County School District as a teacher. During the 2009-2010 school year, she taught language arts to middle school students at West Glades School. During the relevant time period, Ms. Gardner worked under a professional service contract. A teacher's professional service contract automatically renews each year, and the contract can be terminated only by a showing of “just cause” or by performance deficiencies outlined in section 1012.34, Florida Statues. On April 16, 2010, Ms. Gardner was teaching language arts to seventh grade students. The students were supposed to be working on the language arts assignment. However, as Ms. Gardner walked around the class, she found some students working on their math homework. Frustrated by students doing math homework during her language arts class, Ms. Gardner confiscated the students' math work. In one instance, Ms. Gardner tore a student's math homework in half. One of the students whose math work Ms. Gardner confiscated was C.H. C.H. was generally described as a "good student." Ms. Gardner placed C.H.'s math workbook on a table near Gardner's desk at the front of the room, and redirected C.H. to the language arts assignment. At some point in the class, C.H. walked up to the front of the classroom and removed her math workbook from the table without Ms. Gardner's permission. As C.H. turned to walk back with her book, Ms. Gardner forcefully grabbed C.H.'s arm from behind. C.H. credibly testified that Ms. Gardner "grabbed my arm and turned me around and pushed me, and my books fell." C.H. started crying, and walked out of the classroom. As C.H. was leaving the classroom, Ms. Gardner told C.H. to return to her desk. C.H. stated that she was crying because she was "shocked." C.H. walked to the School's office, which is in the same hallway as Ms. Gardner's class. When she arrived at the office, C.H. was crying and visibly upset. The school guidance counselor took C.H. to speak with Principal Davis. Principal Davis found C.H. to be "distraught, crying, [and] shaking." Principal Davis spoke with C.H. to determine why the student was upset. C.H. informed Principal Davis that Ms. Gardner had become angry with C.H., and that Ms. Gardner had snatched C.H.'s books, grabbed her arm and pushed her. Based on the seriousness of the allegation, Principal Davis decided to immediately investigate C.H.'s claims by obtaining statements from C.H.'s classmates. After the language arts class, the next class for C.H. and her classmates was math taught by Ms. Wills. Before the math class began, Ms. Gardner came to Ms. Wills' class and gave her C.H.'s workbook and other students' papers. Ms. Gardner informed Ms. Wills that several of the students had been doing math homework when the students should have been doing their language arts work. Ms. Wills credibly testified that Ms. Gardner was "really upset" with students doing their math homework in her class, and appeared agitated. Shortly after Ms. Wills' class began, Principal Davis came to speak with the students. Principal Davis released Ms. Wills to take an early lunch, and then asked the students to write down anything "bothersome" that has happened in Ms. Gardner's class during the prior period. A majority of the students provided written statements that, in essence, corroborated C.H.'s story. After reviewing the students' statements, Principal Davis decided she needed to investigate further. Principal Davis met with Ms. Gardner and advised her about C.H.'s allegation that Ms. Gardner had inappropriately touched C.H. Because the investigation could result in discipline, Ms. Gardner decided to have a union representative present when she gave her statement. Further, Principal Davis informed Ms. Gardner that Ms. Gardner should go home until the investigation was completed. On April 21, 2010, Ms. Gardner gave her statement to Principal Davis. Ms. Gardner admitted to confiscating C.H.'s math notebook and calculator. Ms. Gardner indicated that later in the class C.H. walked across the room and retrieved her math notebook without permission. Ms. Gardner stated that she merely "touched" C.H.'s arm to redirect the student, and to put the math notebook back on the table. C.H. dropped the math notebook, and left the class. According to Ms. Gardner's interview, she did not forcefully grab C.H.'s arm. Ms. Gardner's testimony that she merely "touched" C.H.'s arm was consistent with the interview given to Principal Davis. The undersigned finds Ms. Gardner's characterization that she only "touched" C.H.'s arm without force not to be credible. Ms. Gardner's testimony concerning the events was often evasive on key points. For example, when asked if she recalled that C.H. was crying when leaving the classroom, Ms. Gardner indicated that she did not. Yet, in her deposition, taken just a week earlier, she testified that C.H. was crying when she left the classroom. Similarly, Ms. Gardner was evasive concerning questions about whether or not she acted in frustration or her understanding that the change in her contract status was the result of her touching C.H. As a result of Ms. Gardner's evasiveness, the undersigned found her credibility damaged. C.H. did not receive any physical injury from the incident on April 16, 2010. After completing her investigation on April 21, 2010, Principal Davis provided Wayne Aldrich, superintendent for Glades County School Board, with the following recommendation: As a result of a battery allegation by a student against Ms. Gardner, I have conducted a thorough investigation and found the allegation to be substantial. Ms. Gardner has been suspended with pay since the incident occurred on Friday, April 16. As a result, I have followed protocol required by the Florida Department of Education Office of Professional Practices and I am recommending the following action: Placement of a narrative of my investigation in her personnel file. Change of her contractual status to fourth year annual for 2010-2011 school year. Recommendation of termination if any further substantiated incidents of intentional physical contact with a student occur. I am requesting that she return to the classroom on Friday, April 23, 2010. Principal Davis testified that she considered the recommended change in Ms. Gardner's contract status from a professional service contract to a "fourth year annual contract" as less severe than termination or suspension. A "fourth year annual contract" would allow Ms. Gardner to return to professional service contract after being on an annual contract for one year. Principal Davis explained that Ms. Gardner had been evaluated as a high-performing teacher in the past, and it was hoped that she would return to that level after this discipline. At the end of the 2009-2010 school year, Principal Davis evaluated Ms. Gardner as "needs improvement." Under the comments section, Principal Davis noted "offer to wait for 2010 FCAT declined." There was no evidence tying this "needs improvement" evaluation to the incident that occurred on April 16, 2010. Superintendent Aldrich reviewed Principal Davis' investigation and recommendation. Based on his review, Superintendent Aldrich recommended that the School Board follow Principal Davis' recommendation, including the change in Ms. Gardner's contract status. Similar to Principal Davis, Superintendent Aldrich believed that the change in Ms. Gardner's contract status was less severe than a suspension. Superintendent Aldrich testified that a teacher should use physical force only "if the student was out of control and would be in a position to do physical harm to another student or themselves." However, no School Board Policy concerning the use of physical force was offered into evidence. The School Board, without notice to Ms. Gardner concerning her rights to an administrative hearing, adopted Principal Davis' recommendations. Ms. Gardner, subsequently, requested a formal administrative hearing and reconsideration of the School Board's decision. The School Board denied her request, finding that Ms. Gardner had waived her right to a hearing. Ms. Gardner filed an appeal. The Second District Court of Appeal found the following: It is undisputed that the Board did not give Ms. Gardner written notice of her right to seek administrative review and the time limits for requesting a hearing. Under these circumstances, the Board failed to provide Ms. Gardner with a point of entry into the administrative process before taking adverse action on her contract status. It follows that Ms. Gardner did not waive her right to request a formal hearing. Consequently, the appellate court reversed the School Board's decision, and remanded the case for further proceedings. Gardner v. Sch. Bd. of Glades Cnty., 73 So. 3d 314 (Fla. 2d DCA 2011). While Ms. Gardner's appeal was pending before the Second District Court of Appeal, Ms. Gardner worked under the fourth year annual contract for 2010-2011 school year. At the end of the 2010-2011 school year, Ms. Gardner's annual contract was not renewed. On remand, the School Board issued a May 16, 2012, letter, notifying Ms. Gardner of her rights to an administrative hearing. The School Board framed the issue as “to challenge the change in her contract status from a professional service contract for fourth year annual contract.” In the Joint Pre- Hearing Stipulation, the parties identified a factual issue for resolution as “[w]hether Gardner's physical contact with the student, C.H., constitutes “just cause” for discipline.” Further, the parties’ stipulation identified three disputed issues of law: 1) Whether the disciplinary options available to Petitioner included placement of Ms. Gardner on a fourth year annual contract status; 2) whether the placement of Ms. Gardner on fourth-year annual contract status was the appropriate discipline; and 3) whether the School Board's action in denying Ms. Gardner's request for a formal hearing in July 2010 renders the placement of Gardner on a fourth-year annual contract status for the 2010-2011 school year, and the non-renewal of her annual contract at the end of the 2010-2011 school year void ab initio. Before considering the legal issues identified by the parties, it is clear that the factual dispute of whether or not “just cause” exists must be addressed first. If “just cause” does not exist, then the issue of the penalty becomes moot. At the hearing, the parties presented testimony concerning the facts underlying the School Board's action here, and whether or not “just cause” existed to sanction Ms. Gardner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Glades County School Board enter a final order finding: The record contains insufficient evidence of "just cause" in order to discipline Ms. Gardner; and Pursuant to section 1012.33(6)(a), Florida Statutes (2010), immediately reinstate Ms. Gardner under her professional service contract and pay her back salary. DONE AND ENTERED this 11th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 11th day of February, 2013.
The Issue The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s sore foot, he advised K.G. that hitting was no basis for settling any dispute. K.G. allegedly responded that he hit anyone he wanted at any time. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed. RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. 6. First two sentences accepted and incorporated herein. Third sentence rejected as not supported by competent evidence of record. 7. Rejected as argument and contra to the weight of the evidence. 8. Accepted and incorporated herein. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot. & 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat. & 18. Accepted in part. The better evidence indicates that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach. Accepted and incorporated herein. Accepted and incorporated herein. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented. Accepted and incorporated herein. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation. Accepted. This was not found to have happened, however. For the Respondent: 1. - 4. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted but what was in the Respondent's mind - his purpose - is unknown. Accepted and incorporated herein. Accepted and incorporated herein. - 13. Accepted and incorporated herein. & 15. Accepted. Accepted and incorporated herein. Accepted. A.C.'s partial disciplinary record has been incorporated herein. COPIES FURNISHED: Margaret E. O'Sullivan, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399 William Du Fresne, Esquire 2929 SW Third Avenue, Suite One Miami, Florida 33129 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400 Jerry Moore Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 George A. Bowen, Acting Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the School Board of Broward County, Florida (School Board) has just cause to terminate Respondent's employment based on the allegations set forth in the Administrative Complaint dated May 13, 2010.
Findings Of Fact At all times material hereto, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. At all times material hereto, the School Board employed Respondent as a classroom teacher pursuant to a professional service contract. At all times relevant to this proceeding, Respondent was assigned to Ashe Middle School where she taught reading and language arts. Respondent holds a Florida educational certificate that has both reading and gifted endorsements. During the time Respondent taught at Ashe Middle School, the school was considered a low performing school. There was a high level of student turnover and a relatively high number of foreign students who did not speak English. Respondent had an advanced reading class that read on grade level. Most of her other students read below grade level.1 Pursuant to a collective bargaining agreement (CBA) with Broward Teachers Union and applicable law, which will be discussed in the Conclusions of Law section of this Recommended Order, School Board has adopted a system to assess teachers known as Instructional Personnel Assessment System (IPAS). Subsection (F)(1)b of Article 18 of the CBA contains the following guiding principle: b. The School Board and BTU [Broward Teachers Union] acknowledge that the assessment process should recognize the professional nature of teaching and supervision. Educational research has not identified a single uni-dimensional construct called "effective teaching." Teachers must pursue a variety of models of effective teaching. It is recognized, moreover, that the educational environment is complex and variable and great weight should be placed on teacher judgment to guide the activities of student learning. Subsection F(2)(e) of Article 18 of the CBA requires that the principal, director, or his/her designee evaluate each employee at least once a year utilizing IPAS. Rating criteria are defined on the IPAS form in the following categories: Instructional Planning Lesson Management Lesson Presentation Student Performance Evaluation Communication Classroom Management Behavior Management Records Management Subject Matter Knowledge Other Professional Competencies The evaluator rates the employee as to each criterion and for overall performance. The rating can be "satisfactory", "needs improvement", or "unsatisfactory." Subsection F of Article 18 of the CBA describes IPAS. Pursuant to the CBA, the assessment system requires a teacher, whose performance has been deemed deficient in one or more areas by an appropriate school administrator, to be placed on a Performance Development Plan (PDP). A school administrator develops the plan and monitors the employee's progress in completing the plan. Subsection F(2)(m)2 of Article 18 of the CBA provides as follows as to the use and implementation of a PDP: Use and implementation of this plan requires identification of deficiencies, definition of strategies for improvement, definition of an assistance timeline, definition of expected outcomes, definition of possible consequences for failure to remediate, completion of assistance activities, and documentation. Subsection (F)(2)f of Article 18 of the CBA provides as follows: The following five (5) techniques are used to gather data on employee performance. Assessors use multiple techniques to understand actual performance and develop performance ratings. Informal classroom observations: Informal observations are made periodically by the principal or designee. A follow-up conference is not required subsequent to an informal classroom observation if performance is deemed satisfactory. Formal classroom observations: Formal observations are primarily initiated by the principal or designee. Employees may, however, request a formal observation. These are not less than 30 minutes in duration and are conducted by the principal, director or his/her designee. The 30 minute time period may be shortened by mutual agreement between the principal and the affected employee. All observations of employees for the purpose of assessment shall be conducted with the full knowledge of the employee. A conference is conducted after each formal observation. The FPMS [Florida Performance Measurement System] or other educationally sound observation instruments which may be used for formal observation.[sic] Observations in non-classroom situations: Principals use opportunities outside the classroom to observe the performance of employees. A follow-up conference is not required subsequent to this type of observation if performance is deemed satisfactory. Review of records and data: Principals review a variety of work samples prepared by the employee. These may include lesson plans, reports, grade card comments, discipline referral documents, etc. In addition, specific records or plans may be requested for review. A follow-up conference is not required if performance is deemed satisfactory. Review of performance portfolio: The principal or designee and the employee may mutually decide that a performance portfolio is needed to provide additional information for the completion of the assessment ratings. The design of a portfolio is determined by the principal and employee. A follow-up conference is not required if performance is deemed satisfactory. A teacher placed on a PDP is given 90 calendar days, excluding school holidays and vacations, to correct the identified performance deficiencies. If, at the end of the 90- day probation period, the performance of the employee remains at an unsatisfactory level for one or more of the assessment criteria, a rating of U (for unsatisfactory) is given. At that juncture, the administrator can extend the PDP period, or he/she can refer the matter to the Office of Professional Standards for further proceedings. Mr. Luciani was the principal and Mr. Muniz was an assistant principal at Ashe Middle School during the 2006-07 school year. On December 11, 2006, Mr. Muniz wrote a memo to Respondent. The memo is quoted verbatim because it targeted problems that continued throughout Respondent's tenure at Ashe Middle School. The memo is as follows: This correspondence is to document the last few week's [sic] events when it was determined that your job performance has been less than satisfactory in the following areas: Behavior Management-managing student behavior Records Management-management of data Communications Instructional Planning On December 7, while doing a classroom visit that lasted 31 minutes I noticed a lack of classroom management. It took almost seven minutes to get the class under control to start your lesson. While there were only 11 students in your room, yet, only five students were on task. You continued to do your lesson despite the disruptions. I am not sure if you were aware or just ignored the disruptions. In the last few weeks you have banished, kicked out, or attempted to kick out students everyday for almost twelve consecutive days. In the past Mr. Hart, Assistant Principal, and I have mentioned that the students should be accompanied by an escort or if you have a receiving teacher you should wait at the door until the child is situated. In at least five occasions your students have been caught wandering the halls because you have kicked them out. There have been many times while on hall duty that I noticed you kicking students out and the class has not yet started. This is unacceptable. You are responsible for the students in your class. When they are unescorted the possibility of injury exist [sic] due to your negligence. The students have not sat down and you attempt to remove them from class. This is also unacceptable. Prior to our recent data conference it was 12:15 in the afternoon and you requested to find out what data you needed at the conference. I directed you to Ms. J. Shakir[,] reading coach[,] who assisted you in securing minimal data for the conference. Please note that there had been four data presentations regarding preparation for the data conferences conducted by Mr. Fleisher and Ms. Lumpkin form c-net. Ms. Shakir and Ms. Pickney also conducted data disaggregation workshops in the previous weeks. While at the conference itself you appeared to know very little with regard to your student data. You were not familiar with your BMA results or the progress your individual students or classes had made. There was no attempt made at providing categorical breakdowns of students which needed prescriptive strategies to address their needs. The confrontational manner with which you speak to children is a direct factor in the lack of classroom management. Your lack of communication skills has led to referrals on many students which have led to major consequences for students after the referrals led to escalated verbal confrontations. During various grade level meetings, I have requested that all teachers provide me with emergency lesson plans every two weeks. To date I have not received any of these plans. Our expectations for each of the above listed concerns are: First and foremost, resolve the discipline problems in compliance with the policies of the school, rules of the District School Board and [sic] the State Board and Florida Statutes. Next, maintain consistency in all application of policy and practice by: Establishing routines and procedures for the use of materials and the physical movement of students. Formulating appropriate standards for student behavior. Identifying inappropriate behavior and employing appropriate techniques for correction. You must prepare for your students all day every day. Lesson plans must be meaningful and relevant to your content area. Studies show that students who are authentically engaged are less prone to deviant [sic] behavior. You must maintain complete order in your classroom. The Principles of Professional Conduct for the Education Profession in the State of Florida requires that the educator make reasonable efforts to protect the students from conditions harmful to learning, and/or to the students' mental, and/or physical health and/or safety. In the next few weeks you will be provided with assistance from behavior specialists, reading/curriculum coach and c-net personnel to assist you in meeting expectations. In February 2007 Respondent was placed on a PDP. Mr. Muniz monitored Respondent's progress and opined that she had not successfully completed the PDP. Mr. Luciani disagreed and instructed Mr. Muniz to give Respondent a satisfactory evaluation, which he did.2 Mr. Luciani was the principal and Mr. Hart was an assistant principal at Ashe Middle School during the 2007-08 and 2008-09 school years. Mr. Hart received a written complaint from a student that on October 1, 2008, Respondent told the student that the student's mother was unfit and did not know how to raise the student. In response to that complaint, on October 3, 2008, Mr. Hart issued Respondent a letter addressing the inappropriate manner in which she had addressed students, which included the following: On numerous occasions you have been counseled regarding your inappropriate comments/behavior towards students. This behavior includes embarrassing, disparaging, and/or awkward comments and/or actions. It has recently been brought to my attention that, once again, you have exhibited this behavior. * * * I am directing you to cease and desist all actions/comments of this nature immediately. You are to speak to students in a respectful, professional manner at all times. Mr. Hart, Respondent, and the student's parent met to discuss the alleged statements made by Respondent to the student. During that conference, Respondent became angry and left the meeting. Later, Mr. Hart met with Respondent to give her a copy of his letter dated October 3. Respondent took the letter and walked out of the meeting without signing the acknowledgment that she had received the letter. Respondent slammed the door as she left Mr. Hart's office. Mr. Hart received numerous complaints from parents and, as a result, transferred several students from Respondent's class to another class. On February 5, 2009, Mr. Hart observed Respondent arguing with a student in her classroom. He admonished her in writing to not be confrontational with students. Respondent's conduct on February 5, 2009, was inconsistent with Mr. Hart's admonishment to her on October 3, 2008. In an undated memorandum subsequent to January 20, 2009, Mr. Hart set forth the following issues that continued to be of concern despite his previous discussions with Respondent: Parent phone calls from her classroom Completing assignments Checking emails Inputting grades into Pinnacle (a computer database) Being prepared for instruction On February 18, 2009, Mr. Hart issued a written reprimand to Respondent for her failure to input student grades into Pinnacle. Respondent was placed on a PDP on February 13, 2009. Noted under the categories "Lesson Management" and "Lesson Presentation" were the failures to meet the following criteria: Orients students to classwork, specifies purposes of activities and relationship to the objectives; Prepares the classroom materials and equipment for the presentation of the lesson; Selects and uses appropriate instructional techniques including available materials and technology which support learning of the specific types of knowledge or skills; and Asks questions which are clear and require students to reflect before responding. During the PDP period that began February 13, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. On May 28, 2009, Mr. Hart completed an IPAS evaluation that rated Respondent unsatisfactory overall and as to the following five categories: "Lesson Management", "Lesson Presentation", "Student Performance Evaluation", "Classroom Management", and "Behavior Management." Mr. Hart rated Respondent satisfactory as to the remaining five categories. Mr. Hart placed Respondent on a second PDP that extended into the 2009-10 school year. At the end of the 2008-09 school year, Mr. Luciani retired. Before the start of the 2009-10 school year, Ms. Peebles became principal of Ashe Middle School. Respondent failed to enter grades and other data for students during the first marking period of the 2009-10 school year. That failure hindered the assessment of each student's needs and made it more difficult to monitor each student's progress. On November 19, 2009, Ms. Peebles conducted an IPAS evaluation for Respondent as to the PDP Mr. Hart had placed her on at the end of the 2008-09 school year. Ms. Peebles found Respondent to be deficient in the same five categories as Mr. Hart's evaluation, and she rated Respondent's overall performance as unsatisfactory. During the PDP period that began May 28, 2009, Respondent was offered appropriate services designed to remediate her deficient performance areas. After her evaluation of November 19, 2009, Ms. Peebles had the options of referring Respondent to the Office of Professional Standards for further proceedings or placing Respondent on another PDP. Ms. Peebles elected to place Respondent on another PDP (the last PDP) because Ms. Peebles was new to the school and she wanted to give Respondent another chance to prove herself. At the conclusion of the last PDP, Ms. Peebles conducted an IPAS evaluation, which was dated April 19, 2010. Respondent remained unsatisfactory in the same five categories as the previous evaluations by Ms. Peebles and Mr. Hart, and her overall evaluation remained unsatisfactory. Throughout her employment at Ashe Middle School, Respondent exhibited a pattern of being absent on Fridays and Mondays. Respondent failed to correct that deficiency after having been counseled by administrators. During the 2009-10 school year, Respondent repeatedly failed to timely provide or leave appropriate lessons after having been counseled by administrators to do so. Respondent was instructed to give her lesson plans to Ms. Brown, the Reading Coach and Reading Department Chairperson, during that school year. Respondent never provided Ms. Brown a complete set of lesson plans the entire year. During the 2009-10 school year, Respondent repeatedly failed to demonstrate that she could control her classroom. She made multiple calls to security on nearly a daily basis and she continued to kick students out of class, which left them in the hallways, unsupervised. The Benchmark Assessment Test (BAT) is a county created test that is administered twice a year in September and again in November. The test is designed to measure the progress, if any, the student has made between the testing dates. The test is also used as a predictor for the Florida Comprehensive Achievement Test (FCAT). The vast majority of Respondent's student's test scores depict either no growth or a regression in all classes. A Mini-BAT is an assessment tool used to develop and provide effective lesson plans as well as student growth. The teacher is responsible for administering the assessment tool to her students and thereafter inputting the results in the computer database. During the 2009-10 school year, approximately half of Respondent's students either were not tested or had no score inputted after being tested. The DAR Assessment is a two-part standardized test designed to measure a student's ability at word recognition and all reading frequency. The test is administered twice a year, once in September and again in January. Ms. Brown administered the tests at Ashe Middle School during the 2009-10 school year. Ms. Brown scored the tests and gave the score results to Respondent, who was required to input the scores in the computer database. The Florida Department of Education (DOE) requires that 90 percent of the students complete the tests, which gives a 10 percent leeway for students who are absent on test days. Students are placed in reading classes based on their test result. The tests also measure each student's progress, or lack thereof, between the test dates. Forty-five percent of Respondent's students had no scores. Nineteen percent of those with scores had no gain. Mock FCATs are periodically administered to students following Mini-BATs. The Mock FCATs administered to Respondent's students during the 2009-10 school year were created by Ms. Brown. Ms. Brown utilized previous iterations of the FCAT that had been released by DOE in an effort to simulate the actual FCAT process in terms of difficulty and complexity. The tests are graded by computer and the scores are given to the teacher to input into the computer database. The results of the Mock FCATs are used to develop instructional plans for students. Sixty-three of Respondent's 111 students (or 57 percent) had no score inputted in the computer database. Nine students who did receive a score made no progress between the dates of the two tests. School Board entered into a contract with a consulting firm named Evans Newton, Inc. (ENI) to assist schools in need of improvement. In 2009-10 school year, ENI provided an assessment test that teachers were to use to monitor students' progress. Respondent administered the assessment test to her class, gave the results to Ms. Brown to score, and recorded the scores in the computer database after receiving the scored results from Ms. Brown. More than 40 percent of Respondent's students had no score recorded for the assessment test. Ms. Brown testified, credibly, that she returned all scored results to Respondent. The lack of a score for over 40 percent of her class can only be explained by Respondent's failure to do her job. Respondent either did not administer the test to those students, she did not give the test results to Ms. Brown to score, or she did not input the scores in the computer database after receiving the results from Ms. Brown. The FCAT Reading Learning Gain is the document through which DOE reports test score results to school districts. During the 2009-10 school year, DOE required a 60 percent learning gain. Respondent's students did not achieve that goal during that school year. For three of the four years she taught at Ashe Middle School, Respondent's classes failed to achieve their FCAT goals. The administrators at Ashe Middle School followed all applicable procedures in formulating and implementing the PDPs and IPASs at issue in this proceeding. After her IPAS evaluation of April 19, 2010, Ms. Peebles referred Respondent's case to the Office of Professional Standards, which resulted in the termination proceedings at issue.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent's employment. DONE AND ENTERED this May 23, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 23rd day of May, 2011.
