The Issue Whether just cause exists, pursuant to section 1012.33, Florida Statutes,2 to suspend Respondent from his employment as a teacher for ten days without pay. 1 All references to chapter 120 are to the 2019 version. 2 All references to chapter 1012 are to the 2018 version, which was in effect at the time of the alleged misconduct at issue in this proceeding.
Findings Of Fact Based on the credible and persuasive competent substantial evidence in the record, the following Findings of Fact are made: The Parties Petitioner, Miami-Dade County School Board, is charged with the duty to operate, control, and supervise free public schools in Miami-Dade County pursuant to section 1001.32, Florida Statutes (2018), and article IX, section 4(b) of the Florida Constitution. Respondent has been employed by Petitioner as a teacher since 2000. He has been employed as an art teacher at E.W.F. Stirrup Elementary School ("Stirrup") for the last 18 years, including when he is alleged to have engaged in the conduct that has given rise to this proceeding. Respondent is certified in art, graphic design, and vocational education. Notice of Specific Charges The Notice of Specific Charges ("NSC"), which constitutes the administrative complaint in this proceeding, alleges two instances of conduct on Respondent's part as the grounds for the proposed disciplinary action. Specifically, the NSC alleges that on or about September 27, 2018, Respondent told a female 5th grade student words to the effect of "get out here; I do not want you here," and forcibly pushed her away with his hand. The NSC also alleges that Respondent used profanity, spoken in Spanish— specifically, the words "mierda"3 and "pinga"4?while covering a class of kindergarten students. The complaint alleges that two adults witnessed Respondent's use of these words.5 This incident is alleged to have occurred on or about December 5, 2018. Based on this alleged conduct, the NSC charges Respondent with misconduct in office, pursuant to Florida Administrative Code Rule 6A-5.056(2), for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Evidence Adduced at the Final Hearing The September 27, 2018 Incident 3 Translated into English, "mierda" means "shit." 4 Translated into English, "pinga," as used in the context pertinent to this proceeding, means "fuck." 5 As more fully discussed below, the NSC does not allege that Respondent's use of these words was directed at any students, or that any students saw or heard Respondent use these words. On September 27, 2018, S.D., a minor, was a student in Respondent's 5th grade art class. S.D. testified, credibly, that on that day, Respondent told her to "get out of his way," then pushed her away by placing his hands on her shoulders. She testified that Respondent's words and actions made her feel "embarrassed, or, like, weird." S.D. acknowledged that she had gone up to Respondent and tried to talk to him while he was talking to the president of the Parent Teacher Association ("PTA"). She tried to get hand sanitizer and Respondent said to her "not now, go away" because he was talking to the PTA president at that time. Respondent characterized S.D. as a child who "has a reputation for basically not obeying anything." He testified that when S.D. approached his desk, he was in a discussion with the PTA president, and he told S.D. to "get out of here" and "sit down." He did not recall touching her. He stated that from where he was standing, he doubted that he could have reached her to push her away, and that had he pushed her, she likely would have fallen. No other witnesses testified at the final hearing regarding this incident. The December 5, 2018 Incident On Wednesday, December 5, 2018, Respondent was assigned to cover another teacher's kindergarten class starting at 9:00 a.m., so that the teacher who regularly taught that class, Ms. Rivero, could attend an exceptional student education ("ESE") meeting regarding one of her students. For the 2018-2019 school year, Respondent was assigned a full day of planning each Wednesday. In addition, Respondent was assigned one hour of planning every other day of the school week, per the Miami-Dade School District ("District") policy of providing teachers a minimum of one hour of planning per day.6 6 Respondent was assigned a full day of planning on Wednesdays in the 2018-2019 school year. This was not a function of his having an extraordinary workload; rather, it was because on Wednesdays, the language arts classes were scheduled back-to-back and students were dismissed early, so that it was infeasible to schedule art classes on Wednesdays. As a result of this scheduling, Respondent enjoyed nearly four more hours of planning per week than the minimum planning time to which he was entitled under the District's planning policy. According to Smith-Moise, if a teacher's schedule provides more than an hour of planning per day, that teacher may be requested, from time to time, to use that additional planning time for involvement in other school activities, including covering other teachers' classes as necessary. The administration at Stirrup generally attempts to schedule substitute teachers to cover classes when a teacher is called away from his or her class; however, on December 5, 2018, another teacher's class already was being covered by a substitute teacher. Because Respondent had planning that entire day, he did not have classes, so was available to cover Rivero's class. The length of ESE meetings varies, depending on the type of ESE service being delivered and whether the students' parents agree with the school district regarding the ESE services proposed to be provided. This particular meeting was an initial ESE team staffing meeting; these types of meetings often are relatively long compared to other types of ESE meetings. Respondent covered Rivero's class on December 5, 2018, from approximately 8:35 a.m. until shortly after 1:00 p.m., when a substitute teacher was called to cover the class for the remainder of the ESE meeting. During the time he was covering Rivero's class, Respondent called the Stirrup administration office multiple times, and also called and sent text messages to a fellow teacher, Yvette Mestre, asking how long the ESE meeting would take and when it would be over. In response to Respondent's calls, Smith-Moise twice left the ESE meeting to speak to Respondent in Rivero's classroom. Both times, when she entered the classroom, she observed Respondent disengaged from the students and talking very loudly on his phone. Respondent made clear to Smith-Moise that he was very frustrated at having his planning time taken to cover Rivero's class when he had other responsibilities to attend to.7 7 Respondent testified that he had a great deal of work to do on a large mural project for his own classes that needed to be completed under a tight deadline. Shortly after the beginning of the school day on December 5, 2018, Smith- Moise had taken a student from Rivero's class to Mestre's classroom because the student was misbehaving in Rivero's classroom. A short time thereafter, Respondent began sending text messages to Mestre, asking when the ESE meeting was going to be over. Mestre, who was occupied with teaching her own class, responded that she did not know, and suggested that Respondent contact the administration office. Around 10:30 or 11:00 a.m., Respondent began calling Mestre, again asking about the length of the ESE meeting. Mestre testified that "he seemed upset because he had stuff that he wanted to plan." Mestre again responded that she did not know and suggested that Respondent contact the administration office. At some point, Mestre went to Rivero's classroom to retrieve a lunchbox for the student from Rivero's class whom she was supervising. When she entered the classroom, she observed Respondent on his phone. Respondent told Mestre that he was on the phone with his United Teachers of Dade ("UTD") representative and that he was upset at having to cover Rivero's class because it was his planning day. Mestre went to the administrative office and reported to Smith-Moise that Respondent was upset and needed assistance in Rivero's classroom. Smith-Moise directed Mestre to take Acevedo Molina, an office assistant, to the classroom so that she (Acevedo Molina) could assist Respondent. According to Mestre, when they entered the classroom, Respondent initially thought Acevedo Molina was going to take over supervision of the class; however, when Mestre informed him that Acevedo Molina was there to assist him but would not be taking over supervision of the class, Respondent became very irate, raised his voice, and used the words "mierda" and "pinga" in speaking to them.8 Acevedo Molina confirmed that Respondent used these words when he spoke to her and Mestre. Mestre and Acevedo Molina were, respectively, "shocked" and "surprised" at Respondent's use of these words. 8 Mestre testified that Respondent said, translated into English, "[t]he school doesn't understand the shit that I do," and "they don't give a fuck what I do in this school." Respondent testified that he does not recall having said those words when he spoke to Mestre and Acevedo Molina that day. There is conflicting evidence whether Respondent used those words inside the classroom, such that they were said within earshot of the students, or outside of the classroom, where the students would not be able to hear or see him use the words. Mestre and Acevedo Molina both testified that they had entered Rivero's classroom and were inside the classroom with Respondent when he used the words. Respondent claims that he had to have stepped outside of the classroom into the corridor to speak to Mestre and Acevedo Molina, because the door was locked and they would have been unable to open it and enter the classroom on their own. In any event, it is unnecessary to determine whether Respondent used these words in the classroom within the students' earshot, because the NSC only charges Respondent with having said "mierda" and "pinga" while "covering a class of kindergarten students for another teacher," and that Respondent's use of these words was "overheard by two adult witnesses." The NSC does not allege that Respondent directed the words toward any students or that any students saw or heard him use these words.9 No direct or persuasive circumstantial evidence was presented showing that any students saw or overheard Respondent use those words. Although Mestre and Acevedo Molina testified that Respondent was inside the classroom when he said the words, both testified that the words were not directed toward the students, and neither testified that any students heard or saw Respondent say those words. Thus, even if the evidence conclusively established that Respondent was inside the classroom when he said those words—which it does not—that does not prove that any students saw or heard Respondent use those words. To that point, Smith-Moise 9 Trevisani v. Dep't of Health, 908 So. 2d 1008, 1009 (Fla. 1st DCA 2005)(a respondent cannot be disciplined for offenses not factually alleged in the administrative complaint); Cottrill v. Dep't of Ins., 685 So. 2d 1371, 1372 (Fla 1st DCA 1996)(predicating disciplinary action on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act). See Hunter v. Dep't of Prof'l Reg., 458 So. 2d 842, 844 (Fla. 2d DCA 1984)(administrative complaint seeking to impose discipline must state, with specificity, the acts giving rise to the complaint). testified that the school had not received any complaints about Respondent's use of those words from any of the students or their parents. The UTD Contract establishes a policy of imposing progressive discipline ("Progressive Discipline Policy") when "the Board deems it appropriate, and . . . the degree of discipline shall be reasonably related to the seriousness of the offense." Neither the Progressive Discipline Policy nor Petitioner's adopted policies articulate a disciplinary "scale" or penalty categories applicable to specific types of conduct. There is no competent substantial evidence in the record showing that Respondent previously has been subjected to disciplinary action by Petitioner. Petitioner did not present any competent substantial evidence establishing the factual basis for its proposal to suspend Respondent for ten days for the offenses charged in the NSC. Findings of Ultimate Fact As noted above, Petitioner has charged Respondent with misconduct in office under rule 6A-5.056(2) for having violated specified provisions of rule 6A-10.081, Principles of Professional Conduct for the Education Profession; School Board Policy 3210, Standards of Ethical Conduct; and School Board Policy 3210.01, Code of Ethics. Whether an offense constitutes a violation of applicable statutes, rules, and policies is a question of ultimate fact to be determined by the trier of fact in the context of each violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995)(whether particular conduct violates a statute, rule, or policy is a factual question); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the conduct, as found, constitutes a violation of statutes, rules, or policies is a question of ultimate fact); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1st DCA 1985)(whether there was a deviation from a standard of conduct is not a conclusion of law, but is instead an ultimate fact). Charged Conduct and Rule Violations The September 27, 2018 Incident Based on the foregoing, it is determined, as a matter of ultimate fact, that Respondent pushed S.D. on September 27, 2018. There was no justification for Respondent to place his hands on and push S.D., even if she interrupted him while he was speaking with another person. Respondent's conduct in pushing S.D. constituted misconduct in office, as defined in rule 6A-5.056(2). Specifically, Respondent's conduct did not comport with rule 6A-10.081(1)(a), which provides that his primary professional concern must be for the student, and requires him to exercise best professional judgment. In pushing S.D., he did not treat her as his primary professional concern, and he did not exercise best professional judgment. Additionally, Respondent's conduct did not comply with rule 6A-10.081(2)(a)1. or School Board Policies 3210 and 3210.01. Specifically, in pushing S.D., Respondent did not make a reasonable effort to protect her from conditions harmful to her mental and physical health and safety. Although S.D. was not physically injured, she was embarrassed by Respondent's conduct in pushing her. Respondent's conduct also did not comply with rule 6A-10.081(2)(a)5. or School Board Policies 3210 and 3210.01. Respondent's conduct in pushing S.D. was intentional and it exposed her to embarrassment. Because Respondent's conduct in pushing S.D. violated rules 6A- 10.081(1)(a)1. and (2)(a)1. and 5., and School Board Policies 3210 and 3210.01, it is found, as a matter of ultimate fact, that Respondent committed misconduct in office, pursuant to rule 6A-5.056(2). Pursuant to the UTD Progressive Discipline Policy, it is determined that Respondent's conduct in pushing S.D. was sufficiently serious to warrant suspending him without pay for five days. There was no justification for him having pushed her. Although S.D. was not physically injured as a result of Respondent's conduct, the potential existed for her to have been injured had she fallen, and, in any event, Respondent's intentional action subjected her to embarrassment. The December 5, 2018 Incident Based on the foregoing findings, it is determined, as a matter of ultimate fact, that Respondent used the words "mierda" and "pinga," which are profane words, when speaking to Mestre and Acevedo Molina on December 5, 2018. However, for the reasons discussed above, it is determined, as a matter of ultimate fact, that Respondent did not direct those words toward the students or that any students heard or saw him use those words.10 Respondent's use of profanity in speaking to Mestre and Acevedo Molina did not comport with rule 6A-10.081(1)(c). In using profanity toward his colleagues, Respondent did not strive to achieve and sustain the highest degree of ethical conduct. Mestre and Acevedo Molina both testified to the effect that they viewed his conduct as inappropriate in that professional setting. Respondent's use of those words when speaking to Mestre and Acevedo Molina did not comply with the requirement in School Board Policy 3210 to refrain from the use of profane or abusive language in the workplace. Respondent's use of those words when speaking with Mestre and Acevedo Molina also did not comply with the standard set forth in School Board Policy 3210.01, which requires the employee to show respect for other people. In sum, Respondent's conduct in saying "mierda" and "pinga" while speaking to Mestre and Acevedo Molina violated rules 6A-10.081(1)(c) and School Board policies 3210 and 3210.01. Accordingly, Respondent's conduct constituted misconduct in office under rule 6A-5.056(2). As discussed above, there is no competent substantial evidence establishing that Respondent has ever been subjected to discipline by Petitioner prior to this proceeding. Although Respondent's conduct in using profanity when speaking to two adult colleagues violates certain policies, in light of the UTD Progressive Discipline Policy, such violation is not sufficiently serious to warrant suspension without pay. Therefore, it is determined that, consistent with the concept of progressive 10 Further, as discussed above, the administrative complaint does not charge Respondent with using those words toward students or charge that any students saw or heard him use those words. discipline, Petitioner should issue a verbal reprimand to Respondent for his conduct in using profanity when speaking to his colleagues. Because Respondent was not charged with, and the evidence did not prove, that he directed profanity toward any students or that any students saw or heard him use profanity, Petitioner may not impose discipline on Respondent on that basis. Just Cause Based on the foregoing, it is determined, as a matter of ultimate fact, that just cause exists to suspend Respondent. Recommended Penalty Based on the foregoing, it is determined that Respondent should be suspended for five days without pay for having pushed S.D. Based on the foregoing, it is determined that Respondent should be issued a verbal reprimand for using profanity when speaking to Mestre and Acevedo Molina and Respondent should receive five days of back pay for the balance of the ten-day period for which Petitioner proposed to suspend him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, consistent with the foregoing, Petitioner enter a final order suspending Respondent from his employment as a teacher for five days without pay, issuing a verbal reprimand to Respondent, and awarding Respondent back pay for five days. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 1st day of June, 2020. COPIES FURNISHED: Christopher J. La Piano, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761-1526 (eServed) Cristina Rivera, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132 (eServed) Carlos M. Sanjurjo Apartment 214 14907 Southwest 80th Street Miami, Florida 33193 Alberto M. Carvalho, Superintendent Miami-Dade County Public Schools 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Sharon V. Eaddy (Respondent) committed the acts alleged in the Notice of Specific Charges filed by the Miami-Dade County School Board (the School Board) on August 29, 2014, and whether the School Board has good cause to terminate Respondent’s employment as a paraprofessional.
Findings Of Fact At all times material hereto, the School Board has been the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. Campbell Drive Center is a public school in Miami-Dade County, Florida. During the 2013-2014 school year, the School Board employed Respondent as a paraprofessional pursuant to a professional service contract. At all times material hereto, Respondent’s employment was governed by the collective bargaining agreement between the School Board and the United Teachers of Dade, the rules and regulations of the School Board, and Florida law. The School Board assigned Respondent to a Pre-K special education classroom at Campbell Drive Center taught by Pascale Vilaire. Respondent has worked at Campbell Drive Center as a paraprofessional for 13 years. During the 2013-2014 school year, 14 special needs students were assigned to Ms. Vilaire’s classroom. Those students were between three and five years of age. L.H., a four-year-old boy who was described as being high functioning on the autism spectrum, was one of Ms. Vilaire’s students. L.H. had frequent temper tantrums during the 2013-2014 school year. Prior to the conduct at issue in this matter, Respondent had had no difficulty managing L.H.’s behavior. There was a conflict in the evidence as to the date the conduct at issue occurred. The undersigned finds that the conduct occurred April 9, 2014, based on the Incident Information admitted into evidence as Petitioner’s Exhibit 4, on the testimony of Yamile Aponte, and on the testimony of Grisel Gutierrez.1/ Ms. Aponte had a daughter in Ms. Vilaire’s class and often served as a parent-volunteer. Ms. Aponte was at Campbell Drive Center’s cafeteria on the morning of April 9, 2014. Present in the cafeteria were Ms. Vilaire, Respondent, some of Ms. Vilaire’s class (including L.H.) and students from other classes. When Ms. Aponte entered the cafeteria, L.H. was crying and hanging on to a trash bin. Ms. Vilaire was attending to another student. Respondent was trying to deal with L.H. to prevent him from tipping over the trash bin. Respondent led L.H. by the wrist back to a table where they sat together. Ms. Aponte approached them and offered L.H. a milk product referred to as a Pediasure. Because L.H. was allergic to milk, Respondent told Ms. Aponte that L.H. could not have the product. When Ms. Vilaire lined up her class to leave the cafeteria, L.H. threw a tantrum because he was still hungry. Ms. Aponte testified that Respondent grabbed L.H. by the wrist and pulled him up. Ms. Vilaire observed the entire interaction between L.H. and Respondent in the cafeteria. Ms. Vilaire did not witness anything she thought was inappropriate or caused her concern. Petitioner failed to establish that Respondent became physically aggressive toward L.H. in the cafeteria by dragging him across the floor or otherwise grabbing him inappropriately. Paragraph nine of the Notice of Specific Charges contains the allegation that while in the cafeteria, “Respondent forcefully grabbed L.H. and dragged him across the floor.” Petitioner did not prove those alleged facts. After the class finished in the cafeteria, the students lined up to go back to the classroom. Ms. Vilaire was at the front of the line, and Respondent was ten to fifteen feet behind at the end of the line with L.H. Ms. Aponte was part of the group going from the cafeteria to the classroom. During the walk back to the classroom, Ms. Vilaire did not see or hear anything between Respondent and L.H. she thought was inappropriate. She did not hear anything that diverted her attention to Respondent and L.H. At the time of the conduct at issue, Barbara Jackson, an experienced teacher, taught first grade at Campbell Drive Center. While Ms. Vilaire’s class was walking from the cafeteria to the classroom, Ms. Jackson had a brief conversation with Respondent about getting food for her class from McDonald’s. Ms. Jackson did not hear or see anything inappropriate between Respondent and L.H. After stopping to talk with Ms. Jackson, Respondent resumed walking to Ms. Vilaire’s classroom. L.H. continued to cry and attempted to pull away from Respondent. L.H. wanted to be the leader of the line, a position that is rotated among the class members. Ms. Vilaire led the other class members into the classroom while Ms. Aponte, Respondent, and L.H. were still outside. While still outside, they saw Grisel Gutierrez, a teacher at Campbell Drive Center. L.H. began to throw himself on the ground on top of his backpack. Ms. Aponte and Ms. Gutierrez saw Respondent grab L.H. forcefully by the arm and hit him on his shoulder with a slapping sound.2/ After Respondent returned L.H. to the classroom, L.H. tried to push over a bookcase containing books and toys. To prevent L.H. from pushing over the bookcase, Respondent grabbed L.H. by his hands and held them behind his back. Ms. Vilaire witnessed the interaction between Respondent and L.H. in the classroom and thought Respondent acted appropriately. Petitioner failed to establish that Respondent acted inappropriately towards L.H. while in the classroom. Ms. Aponte reported what she had seen to the school principal the day of the incident. Respondent learned that Ms. Aponte had complained against her the day of the incident. After school the day of the incident, Respondent angrily confronted Ms. Aponte and asked her why she had lied. Rounett Green, a security guard at Campbell Drive Center, stepped in to end the confrontation between Respondent and Ms. Aponte. There was no evidence that Respondent attempted to threaten Ms. Aponte. Respondent did not use inappropriate language towards Ms. Aponte. Respondent did not make physical contact with Ms. Aponte. L.H.’s mother heard about the alleged interactions between Respondent and L.H. When L.H. returned home after school, the mother examined L.H. and found no bruises or other unusual marks on L.H.’s body. At its regularly scheduled meeting on June 18, 2014, the School Board suspended Respondent’s employment and instituted these proceedings to terminate her employment.
Recommendation The following recommendations are based on the foregoing Findings of Fact and Conclusions of Law: It is RECOMMENDED that the Miami-Dade County School Board, enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate the employment of Sharon V. Eaddy. DONE AND ENTERED this 15th day of January, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2015.
Findings Of Fact At all times material, Respondent Raimundo Manuel Dante was enrolled as a student at W. R. Thomas Junior High School in Dade County, Florida. During the course of two periods of enrollment at W. R. Thomas Junior High School, Respondent has had numerous disciplinary referrals. On one occasion, Respondent was recommended for assignment to the Dade County opportunity school program, but his mother withdrew him before the formal proceedings could be resolved. He was transferred back to W. R. Thomas Junior High primarily due to failing grades at a private school. During summer school for 1984, Respondent was tardy on six occasions. He earned three "D" grades and one "C" grade out of four academic subjects. He was absent three days in the "C" course, mathematics, and four days in each of the other courses, including homeroom. Because of the short timeframe for summer school (July 9, 1984 through August 17, 1984), the Respondent's absences and tardies are excessive. During the regular 1984-1985 school year, Respondent was assigned to the eighth grade. His absences span a minimum of eleven to a maximum of thirty- nine in various classes during the final grading period alone. This is clearly excessive and not conducive to any learning activity. His final grades were failing in all classes except "vocational basic," in which he obtained a "D." On December 12, 1984, Mrs. Gomez referred Respondent to Mr. Helip, who as assistant principal has primary responsibility for discipline at W. R. Thomas Junior High School. The referral was not only for disruptive behavior on that date, but was a culmination of a number of occasions when Respondent had behaved similarly. The nature of Respondent's disruptive behavior on December 12, 1984, involved coming to the front of the room without permission and "answering back" disrespectfully to Mrs. Gomez when she did not grant him permission to leave the room to conduct business he should have handled prior to the beginning of class. This was repetitive of similar behavior which had gone on the previous day and which had not resulted in a student management referral at that time. On December 12, Mrs. Gomez also gave Respondent a detention assignment for social talking which was disrupting the class and he uttered a disruptive and insulting retort in Spanish to the effect that nothing would happen to him if he did not comply with the detention assignment. Mrs. Gomez, who speaks and understands Spanish, then considered all Respondent's past misbehavior in the referral of December 12, including his consistent failure to come to her class equipped with appropriate books, paper and writing implements. On April 26, 1985, Mrs. Gomez referred Respondent to Mr. Helip due to his ten tardies in the last two-week period, for kissing girls while sitting atop his desk, and for wandering about the room, talking, and being off task on April 26 and on several prior occasions. Respondent's remarks, when reprimanded orally by Mrs. Gomez, were interpreted by her as disrespectful and threatening. All counseling with the parents in the 1984-1985 school year appear to have dead-ended. During the regular 1985-1986 school year, Respondent was assigned to the ninth grade. His absence record was less than the previous school year but still varied from four to eight days' absence during the final grading period, depending upon which class was involved. This is also excessive and not conducive to any formal learning experience. His final grades were four failures and one "C" out of the courses attempted. During the 1986 summer session, Respondent was absent five days, which was again excessive in view of the summer session's abbreviated timeframe (July 7 through August 15, 1986). Out of two ninth grade subjects attempted, Respondent failed one and got a "D" in the other. On September 16, 1986, in the course of the regular 1986-1987 school year, Mrs. Robbie referred Respondent for discipline due to his yawning, talking, and back talk to her which disrupted her class. Mrs. Robbie had referred Respondent a number of times in the previous year. He failed her class in that school year, and, therefore, on September 16, 1986, Mr. Helip reassigned him to another English teacher without taking any punitive action against him. During the first grading period of the regular 1986-1987 school year, Respondent had been absent eleven days before the occurrence of the incident which precipitated his administrative assignment to the Dade County opportunity school system. At that time, he had failing grades in every one of the six subjects attempted. At the end of the first grading period, Respondent's conduct grades were all failing. The incident which precipitated administrative assignment of Respondent to the opportunity program involved Ernie Ortiz, a 17-year old ninth grader. Upon leaving the school grounds at the close of a school day in October 1986, Ortiz was "tailed" by a slow-cruising brown Camaro automobile with at least four young men in it. Ortiz saw Respondent in the car. A B-B gun was fired from the car at Ortiz who was on the sidewalk. Ortiz was hit by the B-B shot fired from the car and was subsequently treated at a hospital. The next day, Ortiz saw the same car at school and reported the incident to Mr. Helip. Although Ortiz was never able to say whether Respondent was driving or who shot him, the school resource officer found a pellet gun and pellets, a knife, and a roach clip in the car identified by Ortiz, and Respondent admitted to Mr. Helip that the gun was his. Mr. Helip recommended expulsion of Respondent because he believed a weapons charge had been made against Respondent. Instead, based upon all the circumstances, the school board made an opportunity school placement. There is no competent substantial evidence to show that any criminal charge was made against Respondent. In the past, counseling, corporal punishment, and outdoor suspensions have been tried with regard to Respondent but to no avail. The regular Dade County school program resources have been exhausted as regards Respondent.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the School Board of Dade County enter its Final Order affirming the assignment of Respondent to the school system's opportunity school program at Douglas MacArthur Senior High School-South. DONE and RECOMMENDED this 13th day of March, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1987. COPIES FURNISHED: Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami, Florida 33132 Frank R. Harder, Esquire Twin Oaks Building, Suite 100 2780 Galloway Road Miami, Florida 33165 Mr. and Mrs. Raimundo Dante 1095 S.W. 134th Court Miami, Florida 33184
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is 45 years of age. He is married and has two children. In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation. Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach. Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal. Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year. As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms. In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/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. For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received. There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension. Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday. Respondent did not adequately plan his lessons as directed. His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction. Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed. On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes. Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn. Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating. At times, Respondent fell asleep in class and had to be awakened by his students. Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod. Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive. Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly. Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences. On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments: Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach. On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting. On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance. On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990. Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent. On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day. On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search. At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive. Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties. On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday. On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine. Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990. On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him. Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated. On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/ Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo. Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions: Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs. Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo. During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990. Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me. Respondent turned in his grade book the following day. That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied. On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent. As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights. Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal. At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given. Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990. On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week. On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time." That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem. It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year. After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the disparaging remarks Respondent directed to individual students during class in front of their classmates. On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days. On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows: At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency. It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures. By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year. Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action. Respondent received the memorandum on December 28, 1990. On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions. At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination. Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date. On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance. On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration. On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision. January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office. On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed. On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble. Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day. On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence. Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized. Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed. Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were. At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office. Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them. A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract. The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so. Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity. During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum. As a result, his students suffered. They were deprived of the education to which they were entitled. Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being. Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment. RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992. STUART M. LERNER 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 11th day of February, 1992.
Findings Of Fact Respondent has a bachelor's degree in secondary education in English, which she received from Penn State University in 1973. After graduation, she took ballet lessons for six months in New York and then returned home to recuperate from pneumonia. She returned to Philadelphia and taught in a private school for a short time. She then attended a graduate program at Temple University and received her certification as a reading specialist in 1977, although she did not complete her master's degree. While she was in graduate school, she was a long-term substitute for one and one-half years in Philadelphia. She returned home to Miami Beach, Florida, because she was assigned to a school which she considered undesirable and because she had some dental problems. Respondent started teaching in the Dade County Public Schools in September of 1980 at Robert E. Lee Junior High School. During most of that school year, William R. Jones, who is currently the principal of Robert E. Lee Junior High School, was the assistant principal for curriculum at that school. As such, he received numerous complaints concerning Respondent and her classroom instruction from other teachers, from students, and from parents. Therefore, he observed Respondent teaching. Jones attempted to help Respondent with her teaching presentation, a fact which was acknowledged by Respondent at the formal hearing in this cause when she admitted that he had helped her a great deal in the field of teaching. However, during the 1980-1981 school year she responded to his assistance inappropriately. She told Jones that he had conditioned her to respond favorably to him sexually, and she told other teachers of her physical attraction to Jones. Respondent began to display bizarre behavior at school. On three occasions she was found lying on the front lawn of the school. The students thought that she was asleep, ill, or possibly dead, and this understandably caused commotion in the classrooms. After the first such occasion, Jones told her not to do it again. However, on two subsequent occasions she was found lying on the front lawn of the school. On another occasion, Respondent hysterically interrupted a conference Jones was having with another member of the school staff. He told Respondent that he was involved in a conference, but she refused to leave. She vacillated between laughing and crying. Finally, Jones advised Respondent that if she did not leave, he would call school security. She continued to refuse to leave, and he was compelled to terminate his conference so that he could talk to her. She then indicated that she had nothing to say to him. At the conclusion of the 1980-1981 school year, after Jones had become the principal of Robert E. Lee Junior High School, he was conducting a faculty meeting. Respondent got out of her seat and began to yell and scream. She ran about the cafeteria where the meeting was being held and made threats toward Jones. Due to this disruption, Jones had to end the faculty meeting and send Respondent home. After observing Respondent's classroom technique, Jones determined there was a need for her to obtain additional help or training in Preparation, planning and techniques of instruction. For example, Respondent changed her classroom activity six or seven times during the class period; she would start the class on an assignment and three or four minutes later, before the class had finished, would change the assignment to something else. Jones requested Respondent to attend the Teacher Education Center. She refused to attend. Jones had Respondent transferred from her regular class of approximately 30 to 35 students to a smaller classroom with 13 to 15 students in the hope that she would be able to cope with this reduced-size class. The attempt was unsuccessful. Both Jones and his new assistant principal, Mr. Bonilla, still found Respondent's performance to be unacceptable. In his final evaluation of the school year, Jones rated her as unacceptable. About halfway through the 1980-1981 school year, Jones advised the executive director for the Division of Personnel Control of the Dade County Public Schools, Dr. Patrick Gray, of Respondent's difficulties. After Jones's and Bonilla's annual evaluation of Respondent at the end of the 1980-1981 school year, Gray held a conference with Respondent and referred her to a psychiatrist, Dr. William Gustafson. As a result of his evaluation, Gustafson advised that Respondent was definitely emotionally disturbed and in need of psychiatric treatment. He further opined that Respondent was definitely not able to function as a teacher at the present. Thereafter, Respondent requested a medical leave of absence without pay for psychiatric reasons, and that leave was approved. About this same period of time, Dr. Gray's office received an undated letter from Respondent charging Jones with numerous acts of unprofessional conduct. Among other things, she alleged that Jones, a married man, was having an affair with a fellow educator and that that person had become pregnant. In fact, that faculty member had never been pregnant. During the 1981-1982 school year, Respondent was on a leave of absence from the Dade County Public Schools on medical leave for psychiatric reasons. It is the school system's policy to pay the premiums on hospitalization, vision and dental insurance during such a leave of absence, and this was done for Respondent. Midpoint in that school year, Respondent advised that she wished to return to work, and Dr. Gray arranged to obtain a medical evaluation by psychiatrist Charles B. Mutter. Dr. Mutter reported that Respondent's judgment was impaired, her insight was nil, and she had marked emotional difficulties warranting further psychiatric treatment. He found she had a schizoid predisposition and was in a borderline state with marked anxiety. As a result of Mutter's evaluation, Respondent did not return to work. On March 2, 1982, Dr. Gray received a report from Dr. Gustafson advising that Respondent had returned to treatment with him. Gustafson stated that she was still quite impaired by her condition, although she had improved in some respects. That same day, Gustafson telephoned Gray to advise that Respondent was no longer in treatment and that she considered Gustafson and Gray to be in a conspiracy against her. Gustafson further opined that Respondent had potential for desperate actions and needed continuing therapy. On June 16, 1982, Gray received a letter from Respondent requesting that her medical leave be extended for another year. However, on July 2, 1982, Gray received a report from Dr. Gustafson recommending only a two-month extension of Respondent's medical leave. On August 4, 1982, Gustafson wrote to Gray stating that Respondent had been successfully able to function as a teacher in a private school over the past summer. At that time, it was his opinion that she could handle the responsibilities of a classroom teacher once again. Gustafson's opinion at that time was based in part on Respondent's representation that she had been teaching a classroom of students during the preceding summer. He stated later that had he known that Respondent was only tutoring one student at a time during her summer employment, a fact which Respondent acknowledged at the hearing, he would have been more cautious about his recommendation that she was able to return to work. On the strength of Gustafson's recommendation, Respondent was returned to work in the Dade County Public Schools. She was assigned to Hialeah-Miami Lakes Senior High School, a school with a low incidence of student disruption and of high student test scores. Hialeah-Miami Lakes was in the top one-third of Dade County schools academically as well as in student activities and in the overall operation of the school. Respondent was assigned to teach English/Communications. Respondent's classes each lasted 55 minutes. During the first nine weeks of the school year, she typically assigned students a test which took approximately five to ten minutes to complete. For the rest of the class, she told them to read material of their own choosing. The students either read or slept. While the students were testing themselves and/or reading and/or sleeping, Respondent stared at the ceiling or else read a book. Sometimes she giggled to herself, even though there did not appear to be anything to laugh at occurring at the time. Some of the students felt that she screamed at students without good cause and "acted crazy." Some students requested to be transferred out of her class. The assistant principal in charge of curriculum at Hialeah-Miami Lakes Senior High School observed Respondent's class and found that there was no teaching being done. Further, although the Faculty Handbook at Hialeah-Miami Lakes requires that a minimum of two grades a week be placed in the teacher's grade book for each student, and although Respondent was advised of this requirement, she had no grades in her grade book by the end of the seventh week of school. Instead, she placed colored squares in her grade book. Although this coloring system may have held meaning for Respondent, a substitute or new teacher for the class would not be able to understand anything from this form of grading system. A conference was held with Respondent, the principal of the school, and the assistant principal for curriculum in the principal's office regarding Respondent's unacceptable performance. At that time, both the principal and assistant principal found Respondent's behavior to be bizarre. She grabbed her arms and started to giggle and laugh even though no one had said anything to precipitate any laughter. Although Respondent insists that her testing of the students was absolutely necessary, it normally takes other teachers one week at the most to accomplish the same testing of the students prior to commencing instruction. Respondent was still testing in the seventh week of school and had not yet begun to instruct or teach the students. Other teachers observed Respondent's behavior during the time she was at Hialeah-Miami Lakes and became concerned to the degree that five of them approached the principal regarding Respondent. Raymond Harrell, the language department head at Hialeah-Miami Lakes, described Respondent's behavior, including her inappropriate giggling. Harrell and another teacher, Gary Graziani, related an incident concerning a school- sponsored television program, which is run every other Friday for 15 minutes and is part of the school curriculum. Respondent was upset about the noise from the televisions and stated to them and others: "We have got to stop the noise, I cannot teach with that noise, it's pounding in my blood." It was suggested that she might take her class to the auditorium on the days that the newscast was run; however, she refused and insisted that the noise must be turned down. She stated: "It's like being behind a train. I just can't take it, I just can't take it." No other personnel at the school, including the teacher who had Respondent's classroom before her, had complained about the noise from the televisions. On another occasion, while Harrell was chairing a department meeting concerning curriculum, Respondent raised her hand and gave a 10- to 15-minute speech about the history of her high school curriculum and the way she did things in Pennsylvania. Her comments had nothing to do with the subject of the meeting, and she told the department head to be quiet and pay attention. Harrell, who has also observed Respondent staring at the ceiling and even talking to the ceiling, is of the opinion that she is absolutely incompetent to be a teacher. During the month of October 1982, the principal of Hialeah-Miami Lakes Senior High School requested Dr. Charles Sherwood, the regional supervisor for the Dade County schools, who has extensive background in reading and in English, to come to Hialeah-Miami Lakes to evaluate the reading program at that school. On October 15, 1982, Dr. Sherwood complied with that request, and, as part of his evaluation, he observed Respondent. Dr. Sherwood observed Respondent give a test to her students which required approximately five or six minutes to administer and take. She collected the test sheets and told the class to find something to read. Some students looked at magazines, others talked with each other, and Respondent sat down in a chair and looked at the ceiling. She was not teaching at all. Although Respondent's students were required to have writing instruction, she did not give them any. Dr. Sherwood questioned Respondent as to the materials and supplies she would be using, and she advised him that she would find some when she needed them. The materials that she did have and intended to use when she finished testing the students were not appropriate for her class. Dr. Sherwood does not believe that Respondent is competent to teach school. When the principal of Hialeah-Miami Lakes raised questions as to Respondent's fitness to teach, she was again referred to Dr. Patrick Gray. Gray again referred her for psychiatric evaluation, and, although Respondent resisted, eventually the evaluation did take place. On November 5, 1982, Respondent agreed to see Dr. Anastasia M. Castiello, a board certified psychiatrist. Dr. Castiello diagnosed her as schizophrenic. Dr. Castiello concluded his report on his November 5, 1982, evaluation of Respondent as follows: . . . Finally, in response to your specific question, i,+ is my opinion that Miss Ronburg's mental condition is such at the present time that she would be unable to properly function as a teacher and as a matter of act [sic], it is unlikely that she could function in whatever capacity in a job situation of any kind. After reviewing Dr. Castiello's evaluation, Dr. Gray concluded that the school system had exhausted its efforts to help Respondent and would not be able to be of further assistance to her. He did not feel that medical leave of absence would achieve any further positive results and therefore recommended the termination of Respondent's employment with the school system. On the basis of his educational background and his experience in the area of personnel control, Dr. Gray believes that Respondent clearly lacks the competence to perform the assigned functions of an instructional staff member in Dade County Public Schools. Effective November 18, 1982, Respondent was suspended from her employment with the Dade County Public Schools, and the school board instituted proceedings to dismiss her from employment. On February 7, 1983, Respondent's attorney took the deposition of Dr. William Gustafson who had first seen Respondent in the spring of 1981. Dr. Gustafson agrees that Respondent is suffering from schizophrenia, which he describes as an inability to differentiate what is real from what is unreal and a difficulty in arranging thoughts in an orderly, reasonable, and rational manner. When he first saw her, Gustafson believed that Respondent was delusional about her situation at Robert E. Lee Junior High School and her feelings about Mr. Jones. He noted her inappropriate laughter, from which it appeared that she was responding to things that were within herself. Although Gustafson believes that Respondent has improved somewhat, as of the date of his deposition, his diagnosis remains the same. Dr. Gustafson has been hampered in his treatment of Respondent by her refusal to come for treatment as often as the psychiatrists recommend to be desirable and necessary for treatment of her condition and by Respondent's refusal to take the medication prescribed for her. After her suspension from her employment, Respondent visited Gustafson, who became concerned that she had suicidal feelings, and he hospitalized her for this reason. She checked out of the hospital within three hours. Gustafson believes that if Respondent continues in treatment and accepts medication, she can recover. She has not, however, admitted that she is sick, and she continues to refuse medication and treatment. As of his deposition on February 7, 1983, Gustafson had not seen Respondent in his office for approximately one month. In fact, he had seen her only three or four times since he hospitalized her in November of 1982 and has no reason to believe that she will come in to see him any more often than she has in the past. He believes that in order to be of assistance to her, he should see her once or twice a week for hourly sessions. Since Respondent has only seen Dr. Gustafson approximately 12 times over the period of two years between her first referral to him and the date of the formal hearing in this cause, Dr. Gustafson cannot be considered as her treating physician, and his opinion is entitled to only the same weight as the opinions of the other two psychiatrists who have evaluated Respondent. The most recent psychiatric evaluation of Respondent was performed by Dr. Charles B. Mutter on March 23, 1983. Dr. Mutter is the same psychiatrist who evaluated her in January 1982. Dr. Mutter found that Respondent's judgment is impaired, and her insight is superficial. He further found that she needs more intensive psychotherapy than she is receiving and is in definite need of medication to help her remain more stabilized." Dr. Mutter concluded that Respondent's present mental state precludes her from teaching. He would only recommend that Respondent be permitted to return to the classroom with two stipulations: that she continue treatment with Dr. Gustafson on at least a twice-monthly basis, and that she take medications prescribed by Dr. Gustafson on a consistent basis. At the formal hearing in this cause, Respondent admitted that she would not take medication for her illness even though she has been advised to do so by the psychiatrists. She also testified that she does not feel that she requires psychiatric treatment in order to perform the role of a classroom teacher. Since all three psychiatrists agree that Respondent needs continuing regular therapy and medication in order to improve, and since Respondent refuses to undergo therapy and take medication, it is clear that until she chooses to follow medical advice she will not improve and cannot function as a teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the suspension of Respondent Donna Ronburg, dismissing her from her employment with the School Board of Dade County, Florida, and denying her claim for back pay. DONE and RECOMMENDED this 30th day of June, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 30th day of June, 1983. COPIES FURNISHED: Phyllis O. Douglas, Esquire School Board of Dade County Lindsey Hopkins Building, Room 200 1410 NE Second Avenue Miami, Florida 33132 William du Fresne, Esquire 1782 One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131
The Issue Whether revocation of Respondent's state certification requires his dismissal by the Pinellas County School Board and, if so, has Respondents' certificate been revoked for these purposes by the Education Practices Commission.
Findings Of Fact At all times relevant hereto Respondent was employed on the instructional staff of the Pinellas County School system under a Professional Services Contract. On October 23, 1985, Respondent was issued a Florida Department of Education Teacher's Certificate valid through June 30, 1990. By Administrative Complaint dated October 31, 1988, the Commissioner of Education alleged Respondent violated Sections 231.28 (1)(a), (c), (e), (h), and (2), Florida Statutes, and Rule 6B-1.006(5)(a), (f), (g), and (h), Florida Administrative Code. These allegations constitute grounds for revocation of Respondent's certificate. Respondent waived formal hearing, and requested informal proceedings before the EPC. These informal proceedings resulted in a Final Order filed February 17, 1989 in which Respondent's teaching certificate was revoked for three years. The action of the EPC was announced orally at the informal hearing on January 26, 1989, and on February 3, 1989, Respondent filed a Motion to Rescind Election of Rights previously waiving formal proceedings and to set aside agency action. On February 22, 1989, Respondent filed a motion with EPC for a stay pending final review in which he requested the action of the EPC revoking his certificate be stayed pending action by the EPC on his February 3rd motion. On February 23, 1989, an order was entered by the EPC granting the stay pending reconsideration of the order revoking Respondent's teaching certificate On May 30, 1989, the EPC entered an order denying Respondent's demand for reconsideration and affirming it's final order revoking Respondent's certificate. An appeal from that order had previously been filed with the Second District Court of Appeals, but jurisdiction of the Court of Appeals had been relinquished to allow the EPC to reconsider. On July 25, 1989, Respondent filed in the Second District of Appeals a Motion to Stay the revocation of his certificate pending review by the court of his appeal. By order entered August 9, 1989, the Second District Court of Appeals denied the motion to stay the revocation of Respondent's certificate pending appeal of the EPC order.
Recommendation It is recommended that a Final Order be entered dismissing Lloyd Crossman from the instructional staff of the Pinellas County School system. ENTERED this 13th day of October, 1989, in Tallahassee, Florida. K.N. AYERS 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 13th day of October, 1989. COPIES FURNISHED: Bruce Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 Robert F. McKee, Esquire Post Office Box 75638 Tampa, Florida 33675-0638 Dr. Scott N. Rose, Supt. Pinellas County Schools 1960 East Druid Road Clearwater, Florida 33546 Karen Barr Wilde, Exec. Dir. Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin B. Schapp, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Sydney H. McKenzie General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether or not Respondent should be assigned to J.R.E. Lee Opportunity School. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Anya Cooper and Aaron Brumm and had admitted Exhibits P-1 (two pages of subpoena), P-2 (case management form 676566), P-3 (composite of Student Observation 1/12/87), P-4 (Composite Student Case Management Referral Forms), P-5 (Second Report for School Year 1986-1987), P-6 (Composite of Student Academic and Behavioral Reports), and P-7 (Individualized Education Program, IEP). Respondent presented the oral testimony of Fred Sage and had admitted R-1 (Computer printout), R-2 (Computer printout), R-3 (Child Study Team Conference Notes), and R-4 (composite of report card with progress notes of Grace Baptist Academy). Joint Exhibit A (Multi- Disciplinary Team Report) was also admitted. Due to the failure of Bonnie Edison to respond to a validly served subpoena, the parties stipulated to the taking and filing of her deposition by Petitioner subsequent to July 21, 1987. Respondent's father's August 22, 1987, letter has been treated as a Motion to Strike or Amend the Edison deposition, and the Edison deposition with attached exhibits has been admitted as amended by the Order of September 10, 1987. Petitioner filed a "Memorandum of Law on Jurisdiction, Substantial Interest, and Case or Controversy," and Respondent filed a letter styled, "Request for Ruling." These documents are addressed the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Respondent's parents were notified by a letter dated January 30, 1987, that Respondent had been administratively assigned to the Dade County School Board's alternative education program at J.R.E. Lee Opportunity School. Being previously aware that the recommendation for administrative assignment had been made, Respondent's parents had formally withdrawn Respondent from the public school effective January 29, 1987, and timely petitioned for formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. Respondent's parents are currently complying with State law by continuing their son in a private educational facility, however Respondent's substantial interest entitling him to a formal hearing continues to exist in that the parents desire their son to be enrolled in the regular program of the Dade County public school system and in that they propose to re-enroll him in that system if they prevail in these proceedings. At all times prior to his withdrawal from public school, Respondent was enrolled at Cutler Ridge Junior High School, located in Dade County, Florida. He attended summer school in the summer of 1986, and was 13 years old and in the seventh grade for the regular 1986-1987 school year. During the regular 1986-1987 school year, Anya Cooper was Respondent's mathematics teacher. In her class, Respondent performed his basic skill work below grade level. She described his conduct in her class as very "fidgety, constantly moving around, bothering other students, and talking and kicking purses." However, she also described the foregoing behavior as all done "in fun" and described Respondent's usual responses to admonishment as being, "Okay, Okay." Apparently she interpreted these responses to her correction as being in the nature of back-talk but admitted that following a smart retort, Respondent usually would not say more beyond "Okay" and often complied with her requests. Beginning September 22, 1986, Ms. Cooper kept a daily record of negative behaviors of Respondent. That day, Respondent was extremely talkative and refused to participate in boardwork. He also lied, saying a paper without a name on it which had received a grade of "B" was his own paper when, in fact, it had been submitted by someone else. When confronted with his lie, Respondent admitted the lie immediately. On September 24, he was too talkative and changed his seat. On September 26, he talked during a test and refused twice to take the test before actually taking it. On September 30, he chewed gum and was required to remove it. On an occasion in early October, he talked back to Ms. Cooper and was instructed not to talk in class anymore. On October 22, he threw a piece of staple which hit another student. Ms. Cooper counselled with Respondent about the danger of throwing staples, but Respondent interrupted her and refused to work. On October 23, Respondent kicked a female student, and on October 28, he put his foot on her arm. Ms. Cooper put him out of her class. There is no evidence that any student was ever injured. On October 27, Respondent refused to work and talked during the entire class period. Later that month, he threw a pen into the trash can, creating a loud noise and distraction. Nonetheless, despite the number of these incidents, Ms. Cooper only referred Respondent for discipline by the school administration one time. During summer school the previous summer, the Respondent had been referred by the coach to Assistant Principal Brumm for running around the cafeteria. Respondent was reprimanded and warned without being assigned to indoor or outdoor suspension. On July 22, 1986, also during summer school, Respondent had been referred to the office for disruptive and non-attentive behavior in one class. Assistant Principal Brumm sent Respondent home for one-half day as a disciplinary measure. By October 6, 1986, Respondent was in the Student-At-Risk-Program (SARP). This program assembles a special group of teachers within the school who are able to deal particularly effectively with disciplinary problems. The student members of the program are assigned their own counsellor and attend classes of much smaller size than do those students in the academic mainstream. The target goal of SARP is to identify students at risk for dropping out of school and modify their behavior so as to retain them in the school system. The testimony of Bonnie Edison, Respondent's seventh grade SARP life science teacher for the regular 1986-1987 school year, was submitted by after- filed deposition. Ms. Edison did not routinely refer Respondent to the administration for his discipline problems, nor did she involve the SARP counsellor. She addressed Respondent's disruptive behavior solely with SARP behavior modification techniques. In Ms. Edison's class, Respondent was "off task" and disruptive seventy to eighty percent of the time unless Ms. Edison addressed him on a one-to-one basis, or unless she included him in a group of no more than three students. Despite measurably high ability, Respondent's work effort was below standard ninety percent of the time. He consistently failed to bring proper materials to class but admitted he should do so. Ms. Edison counselled with Respondent a few minutes daily and occasionally for longer periods, sometimes with temporary success, but never with lasting success. Her greatest concern was that Respondent's need for one-on-one attention deprived her of teaching time and limited her time for other students. She also was concerned because, in their conversations, Respondent could name no rewards or goals she could integrate into her program at school. Nonetheless, noting that Respondent related better to plants than to people, and recognizing his very superior ability with horticulture, Ms. Edison involved him in independent study with plants as a reward. She also devised a reward system based upon Respondent's interest in wrestling as a contact sport, and upon his affection and respect for the wrestling coach who had previously referred Respondent for discipline. This coach helped Respondent study for his second grading period exam in Ms. Edison's class, and Respondent earned an "A" on this final exam. Between September 1986 and the end of January 1987, Respondent had a total of seven referrals to the school administration, although some referrals covered several incidents. The constant theme of the referrals of Respondent to the administration was that Respondent had the ability to learn, but insufficient self-discipline to allow him to learn. Respondent had been assigned to six days of CSI (indoor suspension) and one day of outdoor suspension. In the first grading period of the regular 1986-1987 school year, Respondent earned two F's, one D, two C's and one B. By January 29, 1987, in the second grading period, Respondent had earned two F's, two D's and two C's. In the second grading period, he had only been absent 2 or 3 times in each class except for math, in which he had 8 absences. There is no evidence that any teacher or administrator viewed these absences as excessive. On January 20, 1987, a teacher referred Respondent for disrupting other students in CSI by making squeaking sounds. Thereafter, a Child Study Team was convened. Each of Respondent' a teachers participated in a conference with Respondent's mother on January 28, 1987. The consensus of the team and teachers was that Respondent needed extremely close supervision. Each teacher consulted with Respondent's mother on this occasion. Although there is evidence of some parental contact due to previous disciplinary problems, it appears that January 28, 1987, when the alternative education program was being actively explored, was the first time the parents were made aware of the serious penalties attendant upon Respondent's grades, behavior, and absences. The probable explanation for the lack of prior communication is that Respondent never gave contact slips/reports to his parents, but it is also clear that there was little or no administrative follow-up on the written material sent home and that the parents also resented and reacted hostilely to two oral contacts by the administration. Mr. Brumm opined that all disciplinary and counselling techniques at his disposal had been tried but had proven ineffectual. It was Respondent's parents' position that the school had failed to adequately communicate with them concerning their son's disinterested and disruptive behavior; had failed to involve them early enough in disciplinary and academic correction of their son; and had failed to use corporal punishment to discipline Respondent. To buttress their assertion that the school had failed to adequately communicate with them, the parents asserted that since certain disciplinary reports/referrals had not been committed to writing or consigned to the computer prior to the administrative school assignment (January 30, 1987) or prior to the formal withdrawal of their son from the Dade County School System (January 29, 1987), there was little or no credibility in any of the disciplinary reports/referrals admitted in evidence and particularly no credibility in those reports/referrals dated February 6, 1987, and later. The failure of teachers and administrators to timely commit to writing the reports does not diminish the credibility of the oral testimony on the same facts by the teachers and Mr. Brumm. It does, however, render less credible the administration's assertion that adequate communication was made with the parents simultaneously with the alleged disciplinary actions. The parents' assertion that the school failed to use corporal punishment as an accepted disciplinary technique is ill-founded. The administration's failure to employ corporal punishment was consistent with established policy, and not demonstrated to be unreasonable. Respondent's exhibits of report cards and progress reports from the private school which he entered subsequent to withdrawal from the Dade County Public School System are irrelevant to the statutory issues discussed in the conclusions of law. They are also virtually unintelligible without any "key" by which they may be interpreted.
The Issue The issue in this case is whether a district school board is entitled to terminate for just cause the employment of a non- instructional employee who has been accused of misconduct in office, gross insubordination, and conduct unbecoming a school board employee.
Findings Of Fact The evidence presented at final hearing established the facts that follow. From December 1989 until the Board suspended her without pay effective October 11, 2000, Wallace worked in the Miami-Dade Public School System as a non-instructional employee. She held various clerical and secretarial positions in several different offices during that period. At the time of her suspension, Wallace was a Senior Secretary in the Office of Applied Technology, Adult, and Career Education. Wallace is a member of the United Teachers of Dade ("Union"). She is covered by the collective bargaining agreement between the Union and the Miami-Dade County Public Schools that took effect on July 1, 1999, and operates until June 30, 2002. Article XXI, Section 3, of the collective bargaining agreement sets forth the "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel" and contains the following provision: D. Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. Pet. Exh. 1A. Although capable, Wallace has been a marginal employee whose service in the school system has been marked by documented deficiencies and supervisors' complaints. One former boss succinctly described her as being able "to do an excellent job[,] but . . . defiant, . . . disrespectful, . . . irresponsible, . . . [and] unreliable." Transcript of Final Hearing ("T-") 253. In fairness, this person's experience with Wallace ended in December 1995, yet others for whom Wallace worked more recently echoed her sentiments. Indeed, the Board presented extensive evidence of Wallace's negative employment history, establishing persuasively that over the years she had committed numerous infractions such as arriving late to work, taking long lunches, disobeying instructions, failing timely to complete assignments, and spending excessive time on personal telephone conversations. However, these incidents — many of which happened years ago and long before the Board decided to dismiss Wallace — are too remote, as a factual matter, to bear on the charges against her. Further, Wallace received her last annual evaluation at the end of the 1998-99 school year.1 Her evaluator was Mr. Dale Keith, the person to whom Wallace then directly reported. Signed by Mr. Keith on July 14, 1999, the evaluation contained his ratings of Wallace, as either satisfactory or unsatisfactory, in seven performance categories: A. Knowledge; B. Quality of Work; C. Efficiency; D. Interpersonal Skills; E. Dependability and Judgment; F. Attendance and Punctuality; and G. Adherence to Rules and Procedures. Mr. Keith rated Wallace satisfactory in every category and assigned her an Overall Performance Rating of satisfactory. He did not prescribe any "[r]equired actions toward remediation of deficiency" but made several "suggestions" for improvement in the upcoming 1999-2000 school year.2 Thus, as this evaluation demonstrates, despite past problems, by July 1999 Wallace had remedied her deficiencies to a degree that her job was not in immediate jeopardy. After July 1999, however, Wallace wound up in work-related trouble on three specific occasions, the circumstances of which are pertinent to the present charges. The Jury Duty Incident (August-September 1999) After receiving a summons requiring her to be available for jury duty in federal court during a two-week period beginning on Monday, August 30, 1999, Wallace notified Mr. Keith, in accordance with office procedures, that she might be absent from work as a result. Wallace did not report to work on August 30, 1999, or any following day that week. She also failed to keep Mr. Keith apprised of her whereabouts. On Friday, September 3, having heard nothing from Wallace, Mr. Keith contacted the court clerk's office, which sent him, by facsimile transmission, a Certificate of Juror's Attendance attesting to the fact that Wallace had attended court proceedings in person on August 30, 1999 — but not thereafter. On Tuesday, September 7, 1999 (Monday of that week was Labor Day), Mr. Keith called Wallace to find out what was going on. The upshot of this discussion was that Mr. Keith discovered Wallace had not been needed in court from Tuesday through Friday of the preceding week, but apparently she was serving on a jury during this second week of her eligibility. Mr. Keith told her to call in daily, and she did so after that. Upon Wallace's return to work, she was disciplined for having taken unauthorized leave on the days when she was neither in court nor in the office. As punishment, the Board docked Wallace's pay by four days' wages, and the matter was closed. The First Typing Test Incident (September 1999) Shortly before 9:00 a.m. on September 16, 1999, Wallace entered the Division of Non-Instructional Staffing's testing lab. Once inside, she recorded her name, arrival time, and purpose — to take a typing skills test — in a Receptionist Log located in the lobby. The typing skills test that Wallace desired to take is used to screen potential applicants for clerical and secretarial jobs. A tool that measures typing speed, the test is administered to persons not presently employed in the Miami-Dade Public Schools who are interested in applying for clerical positions in the system, as well as to existing employees who, by improving their previous scores, may become eligible to apply for higher-level jobs. A person who is not already employed in the school system must achieve a score that meets the minimum requirement for some position to become eligible to submit an application. A prospective applicant will not be provided an application until after he or she has passed the typing skills test by earning a minimally qualifying score. There are additional examinations that must be taken later in the application process, but none is at issue here. Because it is beneficial to earn a score that will qualify for as many positions as possible, existing employees routinely re-take the typing skills test in hopes of expanding their opportunities for advancement. The fastest typing speed required for any clerical or secretarial job, however, is 60 words per minute ("wpm"). Therefore, once an individual attains a score of 60 wpm or better, that person can achieve no additional competitive advantage with a higher score and need not be tested again. Wallace had attained a score of 60 wpm in 1994. Although Wallace appears to have had no practical reason to re-take the typing skills test in September 1999, she was not at the time under direct orders forbidding her from doing so, and there were no specific written rules or policies proscribing her action.3 An employee named Mariana Pena was responsible for administering the typing skills test. That September morning when Wallace appeared, Ms. Pena called the names of the persons who had signed the Receptionist Log, collected their picture identification cards for verification, brought them to the testing area, and gave instructions to sit down at one of the computer terminals and sign in by name and Social Security number. Wallace went into the testing area accompanied by another woman with whom she appeared to be friendly. Consistent with their apparent familiarity, the two sat next to each other. Ms. Pena did not happen to see the computer screen showing the name and Social Security number that Wallace entered when she signed in. Persons taking the typing skills test are provided a piece of paper and instructed to type the text contained on it. The computer determines each person's proficiency and prints the results, assigning a score to each individual, all of whom are identified on the score sheet by name and Social Security number. Each person is given two chances to perform, and his or her lower score is discarded. Ordinarily, the persons being tested proceed with their respective second attempts as the results print out from their first ones. On September 16, 1999, the results from the first round of testing were anomalous in that Wallace's putative friend had managed to post two scores while Wallace herself had generated no score. One possible explanation for this unusual outcome was that Wallace had taken the test under her friend's name, by prior arrangement, while the latter had failed to perform her part in the plot by pretending to be Wallace. There was no direct proof, however, that the two had conspired to cheat in this manner. Suspecting that a scheme was afoot, Ms. Pena kept a watchful eye on the pair during the second round of testing. This time, the results were normal, with a score assigned to each test taker. At the conclusion of the testing process, Ms. Pena asked Wallace and her apparent friend to remain behind. Ms. Pena and her immediate supervisor, Arlene Diaz, questioned the two and ascertained that both were school system employees. In due course, the details of the incident were provided to Mr. Henry Horstmann, an Executive Director in the Division of Non-Instructional Staffing. Upon learning what had transpired, Mr. Horstmann contacted Wallace by telephone and explicitly directed her to stay away from the testing lab. In addition, Mr. Horstmann ordered Wallace not to take the typing skills test again without obtaining his permission in advance. Separately, he instructed Ms. Pena and Ms. Diaz that Wallace was not to be given the typing test, and that they must notify him immediately if she attempted to take it in the future. Mr. Horstmann's directives to Wallace were unambiguous and, in view of the circumstances, entirely reasonable in nature.4 He unquestionably had the authority to issue them. The Second Typing Test Incident (February 2000) On February 23, 2000, Wallace returned to the testing lab for the purpose of taking the typing skills test. This time, she signed the Receptionist Log as "Tranee Wallace." Tranee Wallace is the name of Wallace's daughter. After Ms. Pena called the roll, Wallace presented an identification card that bore Tranee's name and picture. When Ms. Pena saw the photograph, she could tell that the identification was not Wallace's. Also, seeing the name "Wallace" on the card jogged her memory of the September 1999 incident, causing her to recognize Wallace. As instructed, Ms. Pena immediately notified Mr. Horstmann that Wallace was in the testing lab. Mr. Horstmann walked to the testing lab and removed Wallace, escorting her back to his office. There, Mr. Horstmann examined the identification that Wallace had presented to Ms. Pena and observed that it belonged to Wallace's daughter Tranee. Mr. Horstmann explained to Wallace that he was going to refer the matter to the Office of Professional Standards for investigation. He again directed Wallace not to return to the testing lab. Mr. Horstmann also notified Dr. John Goonen, the Administrative Director, Adult Education Work Force Development, in whose department Wallace was working, about the situation. Having heard from Mr. Horstmann, the District Director of the Office of Professional Standards approved an investigation into the February 2000 incident at the typing lab. The case was assigned to Detective Niurka Echezebal of the Miami-Dade County School Police Department. On March 20, 2000, the detective interviewed Wallace in the presence of a Union representative. During the interview Wallace stated that she had disobeyed Mr. Horstmann's earlier directive to stay away from the testing lab because she was upset at having been forbidden to take the typing skills test again. Wallace admitted that she had attempted to take the test using her daughter's name and identification. Wallace denied that she was trying to help Tranee become eligible for employment in the school system. She claimed that she merely had wanted to practice her typing speed. The investigation, which concluded on March 29, 2000, resulted in a determination that Wallace had committed the offense of fraud. As a result, she was directed to appear at a conference-for-the-record in the Office of Professional Standards, which took place as scheduled on May 9, 2000. At that meeting, Wallace again denied having attempted to take the typing skills test for her daughter. As before, Wallace maintained that she had desired only to discover how well she would fare on the test. About five months later, on October 11, 2000, the Board made the decision that gave rise to these proceedings, suspending Wallace without pay, with the intent to terminate her employment. Ultimate Factual Determinations Wallace did not commit the offense of gross insubordination or willful neglect of duties, as defined in Rule 6B-4.009(4), Florida Administrative Code — not, at least, after July 1999. Her failure during the week of August 30, 1999, to report for work under the pretense of jury service was not in defiance of a direct order, and in any event Wallace was punished appropriately for that misdeed. Similarly, Wallace’s first bit of trouble in the typing lab, which took place on September 16, 1999, did not stem from an intentional refusal to obey a direct order; too, she was properly disciplined for her involvement in that event. In contrast, when Wallace attempted to take the typing skills test on February 23, 2000, she intentionally violated a direct and reasonable order, given by Mr. Horstmann with proper authority, that she not return to the testing lab for the purpose of taking the typing skills test without securing his permission in advance. This single, flagrant act of insubordination, however, does not amount to "constant or continuing" disobedience, which the rule requires be shown to justify termination of employment. Wallace’s participation in the first typing test incident did not constitute misconduct in office. Although the Board has argued here that Wallace was engaged in a fraud that September day, the evidence regarding her intent was inconclusive — as Wallace’s superiors concluded at the time of the event. Whether Wallace was an innocent victim of someone else’s mistake or wrongdoing, made a mistake of her own, played a prank, or had something more malign in mind is hard to say. Mr. Horstmann’s pragmatic punishment — ordering Wallace not to return to the testing lab — was a sensible resolution of the affair. Wallace is guilty of the offense of misconduct in office as a consequence of the second typing test incident. Her attempt to take the typing skills test while knowingly posing as her daughter was made with an intent to deceive the Board and hence was tantamount to fraud. Wallace's explanation that she wanted to take the test for her own benefit rather than her daughter's is not credible. The trier refuses to believe that Wallace would have taken so large a risk (loss of job) for so little gain (secret satisfaction at performing well on an in- house typing skills test?) when a more likely motive is readily apparent. The circumstances and common sense suggest that Wallace — whose typing abilities qualified her for any clerical or secretarial position in the school system — intended to take the test for her daughter so that Tranee could apply for some job, at least, and the widest variety of jobs at best. Accordingly, when Wallace wrote her daughter's name in the Receptionist Log, she knowingly misrepresented, on a document in connection with professional activities, a material fact — her identity — with the intent that Ms. Pena (or whoever was about to administer the test) would rely on the false statement and allow her to take the test as Tranee. Continuing with the deception, Wallace failed to maintain honesty in her professional dealings when she handed Tranee's identification card to Ms. Pena knowing that the card misrepresented Wallace's true identity and with the intent that Ms. Pena would believe Wallace to be Tranee. Wallace's deceitful conduct on the occasion of the second typing test incident violated Rule 6B-1.006(5)(h), Florida Administrative Code (employee shall not submit fraudulent information on any document in connection with professional activities), as well as Rule 6B- 1.006(5)(a)(employee shall maintain honesty in all professional dealings).5 Wallace's deceitful conduct also violated Rule 6B- 1.001(3), Florida Administrative Code (employee shall strive to achieve highest degree of ethical conduct) and School Board Rule 6Gx13-4A-1.21, which prohibits unseemly conduct and affirmatively requires employees to conduct themselves so as to reflect credit on themselves and the school system. These latter two violations, it should be mentioned, are derivative of the first two described, inasmuch as an act of fraud or dishonesty necessarily misses the "highest degree of ethical conduct" mark and always fails to reflect credit on the perpetrator. There was little direct evidence that Wallace's deceitful conduct actually impaired her effectiveness in the school system — which is a necessary factual component of the offense of misconduct in office. Mr. Keith's testimony on the issue of ineffectiveness was largely hypothetical and somewhat ambivalent. T-283-84. Dr. Goonen's testimony on the point was conclusory, T-313-15, as was Ms. Virginia Bradford's, T-346. Dr. Goonen and Mr. Keith argued that Wallace could not be trusted to handle sensitive assignments, such as those involving information about other employees' rates of pay, but this contention seemed contrived and lacked force. Wallace's secretarial duties did not demand a heightened degree of trustworthiness, honesty, judgment, or discretion above and beyond that which any reasonable employer would expect of a rank-and-file employee.6 Moreover, and more important, there was no evidence that Wallace's responsibilities were restricted in any way as a result of the misconduct in question. Indeed, it is striking that, although Wallace continued to work in the school system for nearly seven months after the second typing test incident, the Board did not present proof of a single occurrence of actual ineffectiveness attributable to her deceitful conduct. Nevertheless, Wallace's misconduct — which entailed a premeditated, intentional deception of her employer for the purpose of subverting the integrity of the employment application process, to the potential detriment not only of the school system but also of prospective applicants besides Tranee — was of a kind that would not have failed, in the ordinary course of events, to impair her effectiveness in the school system. This finding is based on common sense and common knowledge, which teach that: (1) an employee who has been caught, red-handed, in the very act of advancing a plan to deceive his or her employer inevitably will be branded dishonest and disloyal — in a word, untrustworthy; and (2) an employee whose probity is rightly suspect cannot be as effective as one who is regarded favorably, or at least has given no cause for concern, on that score. Therefore, under the facts of this case, it is reasonable to infer, and the trier of fact does infer, that Wallace's deceitful conduct must have impaired her effectiveness in the school system, to some extent. In drawing the fair inference of resulting ineffectiveness, the trier has taken into account several additional factors that should be noted. First, the deceitful conduct at issue was not of a private immoral nature, e.g. some sort of consensual sexual activity between adults. Second, to execute her fraudulent scheme, Wallace needed to defy a direct order to stay away from the testing lab; the seriousness of Wallace’s deceitful conduct is magnified by the fact that it required a predicate act of willful defiance. Third, Wallace refused to acknowledge her wrongdoing, offering instead incredible excuses for it, and she never apologized or showed remorse. She did nothing, in short, to mitigate the damage to her reputation; if anything, she compounded the impairment that follows inexorably from fairly being thought dishonest. Finally, while there was no persuasive direct evidence of Wallace's resulting ineffectiveness, there was also no affirmative evidence that she continued to be effective despite having been caught, in flagrante delicto, defrauding her employer. In sum, taking into consideration all of the evidence in the case, there are no compelling countervailing factual grounds to discourage the drawing of an inference of ineffectiveness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order ratifying Wallace’s suspension without pay effective October 12, 2000, and discharging her from further employment in the Miami- Dade Public Schools. DONE AND ENTERED this 4th day of April, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of April, 2001.
The Issue Whether Jessie M. Mitchell should be discharged from her employment as a teacher in the Duval County public school system for professional incompetency as set forth in Section 4(e) of the Duval County Teacher Tenure Act, Chapter 21197, 1941 Laws of Florida (hereinafter referred to as the "Tenure Act")?
Findings Of Fact At all times relevant to this proceeding, Ms. Mitchell was licensed as a public school teacher by the State of Florida. Her license was current and in full force and effect. Ms. Mitchell was licensed to teach in early childhood education. At all times relevant to this proceeding, Ms. Mitchell was employed as a tenured teacher by the Board. Ms. Mitchell received a Bachelor of Science degree from Edward Waters in 1962 and a Masters degree from Florida A & A University in 1965. During the 1985-1986 school year, Ms. Mitchell was assigned as a teacher at S. P. Livingston Elementary School (hereinafter referred to as "Livingston") in Jacksonville, Florida. Robert Strauss was the principal at Livingston during the 1985-1986 school year. Mr. Strauss had been the principal charged with evaluating Ms. Mitchell during the 1982-1983, 1983-1984 and 1984-1985 school years. Mr. Strauss had given Ms. Mitchell an overall satisfactory rating for these years. Ms. Mitchell received satisfactory ratings for the 1980 through 1985 school years. She did not receive an unsatisfactory rating until the 1985-1986 school year. During the 1985-1986 school year Mr. Strauss observed Ms. Mitchell teaching on four or five occasions. On February 14, 1986, Mr. Strauss extended the end of Ms. Mitchell's evaluation period for the 1985-1986 school year from March 15, 1986, the usual evaluation date, to May 2, 1986. In-service cadre were also requested to assist Ms. Mitchell improve her performance. John Williams was the primary in-service cadre member who provided assistance to Ms. Mitchell during the 1985-1986 school year. Mr. Williams observed Ms. Mitchell teaching on April 18, 1986 and May 22, 1986. After each observation, Mr. Williams met with Ms. Mitchell and discussed his observations. Written suggestions for improvement were also presented to Ms. Mitchell by Mr. Williams. Ms. Mitchell was also given the opportunity to observe other teachers. In addition to Mr. Williams, Cheryl Schang, Marilyn Russell and Carolyn Love provided assistance to Ms. Mitchell. Mr. Williams and Ms. Russell conducted a help session on planning and curriculum for Ms. Mitchell. Ms. Mitchell did not cooperate fully in the efforts of Mr. Williams and other in-service cadre members to assist her. She missed several meetings which had been scheduled with cadre members. Ms. Love observed Ms. Williams for approximately five hours. Based upon her observations, Ms. Love pointed out deficiencies and discussed ways of correcting those deficiencies with Ms. Mitchell. Mr. Williams provided Ms. Mitchell with language experience reading materials, teacher improvement packets and behavior management material in an effort to improve her performance as a teacher. Mr. Williams and Mr. Strauss developed a Professional Development Plan for Ms. Mitchell. The Professional Development Plan provided objectives and suggestions designed to assist Ms. Mitchell in improving her performance as a teacher. The Professional Development Plan was provided to Ms. Mitchell in April, 1986. It was not probable, nor was it anticipated, however, that Ms. Mitchell would complete the goals set out in the Professional Development Plan before the 1985-1986 school year ended. It was anticipated that the Professional Development Plan would be followed by Ms. Mitchell during the 1986- 1987 school year. The Professional Development Plan developed for Ms. Mitchell was adequate to assist Ms. Mitchell to improve her teaching performance. Ms. Mitchell did not carry out the objectives and suggestions contained in the Professional Development Plan during the 1985-1986 school year or the 1986-1987 school year. Ms. Mitchell was given a written evaluation for the 1985-1986 school year by Mr. Strauss on May 2, 1986. Ms. Mitchell was evaluated unsatisfactory. Ms. Mitchell was notified by certified mail on May 16, 1986, that her performance as a teacher during the 1985-1986 school year had not been satisfactory. Ms. Mitchell was informed that she had the right to transfer to a new teaching position for the 1986-1987 school year. Ms. Mitchell elected to transfer to a new teaching position for the 1986-1987 school year. She was assigned to teach kindergarten at Richard L. Brown Sixth Grade Center (hereinafter referred to as "R. L. Brown") for the 1986-1987 school year. William Permenter was the principal at R. L. Brown. In August, 1986, Mr. Permenter and Ms. Mitchell had a pre-planning conference. During this conference, the Professional Development Plan developed by Mr. Strauss and Mr. Williams for Ms. Mitchell was discussed with her and modified. Mr. Permenter made numerous suggestions to Ms. Mitchell to assist her in improving her teaching performance during the 1986-1987 school year. During the 1986-1987 school year Mr. Permenter observed Ms. Mitchell teaching on at least nine occasions. Conferences were held with Ms. Mitchell following these observations. Mr. Permenter also set out in writing suggestions intended to assist Ms. Mitchell in improving her teaching performance. Mr. Permenter's written suggestions to Ms. Mitchell contained clear and detailed concerns with Ms. Mitchell's performance. In October, 1986, Mr. Permenter gave Ms. Mitchell an interim evaluation of unsatisfactory. On January 30, 1987, Ms. Mitchell was informed by Mr. Permenter that she would receive an unsatisfactory evaluation for the 1986-1987 school year unless she demonstrated an acceptable level of teaching performance by March 15, 1987. In March, 1987, Ms. Mitchell was given an unsatisfactory evaluation for the 1986-1987 school year by Mr. Permenter. During the 1986-1987 school year the primary in-service cadre member who assisted Ms. Mitchell was James Constande. Mr. Constande observed Ms. Mitchell on at least six occasions, conducted conferences with Ms. Mitchell, made suggestions to her and provided her with written materials designed to assist her in improving her teaching performance. Five of Mr. Constande's six observations were scheduled with the permission of Ms. Mitchell. Jayne Owens, another in-service cadre member, also assisted Ms. Mitchell. No observations were conducted by in-service cadre from September 27, 1986, through November 25, 1986 and from November 26, 1986, through January 21, 1987, because of Ms. Mitchell's reluctance to agree to such observations. On March 23, 1987, Ms. Mitchell told Mr. Constande that she did not want to continue with classroom observations. Mr. Constande contacted Ms. Mitchell in April and May of 1987, at least twice each month. Ms. Mitchell refused to allow any classroom observations. In-service cadre members encouraged Ms. Mitchell to contact them if she needed any additional assistance. Ms. Mitchell did so only on a few occasions. Jayne Owens, an in-service cadre member during the 1986-1987 school year, conducted class while Ms. Mitchell observed. During the 1986-1987 school year Ms. Mitchell believed that Mr. Permenter and the in-service cadre members were not trying to help her. This attitude was reinforced by advice Ms. Mitchell received from counsel for the Duval County Teachers' Union. Ms. Mitchell's attitude about Mr. Permenter and the in-service cadre deteriorated after she received an unsatisfactory rating for the 1986-1987 school year. She refused any further assistance from the in-service cadre. The unsatisfactory ratings which Ms. Mitchell received for the 1985- 1986 and 1986-1987 school years were based upon her deficiencies in the general areas of classroom management and teaching effectiveness. Ms. Mitchell's classroom management deficiencies included the following: (a) failure to maintain order in the classroom and school corridors; (b) failure to maintain an attractive, organized classroom (Ms. Mitchell did improve her performance in this area, however); (c) failure to keep students on- task by engaging in conversation unrelated to the subject of her class; (d) failure to maintain effective behavior management techniques such as the use positive reinforcement to avoid negative behavior; (e) failure to stop students who interrupted by calling out; (f) failure to explain the standard of behavior she expected; (g) failure to control the noise level; (h) failure to monitor rules and to timely issue desists orders; (i) failure to identify and discipline students actually causing disruptions; (j) failure to stop children from chewing on pencils, which may be a health hazard; and (k) failure to insure that usable school materials were picked up off the floor to avoid their being sweep up and thrown away. Ms. Mitchell's teaching deficiencies included the following: (a) failure to explain the purpose of lessons at the beginning of a class and to give a review at the end of the class to reinforce what had been taught; (b) failure to provide an explanation when moving from one subject to the next; (c) failure to use correct grammar; (d) failure to give praise; (e) failure to organize the classroom effectively into learning areas; (f) failure to correctly mark report cards; (g) failure to manage time properly, resulting in a loss of momentum; (h) failure to have materials and teaching aides ready to start class; (i) failure to select subject matter of a film suitable for her students; (j) failure to keep lesson plans in accordance with district guidelines; (k) failure to assign or prepare sufficient tasks for students; (1) failure to organize instructions; (m) failure to stop unison responses; (n) failure to be familiar with subject of a film; (o) failure to avoid providing too much information to students; and (p) failure to accurately present subject matter. Ms. Mitchell's deficiencies were observed over two school years by at least six observers on several occasions. Ms. Mitchell was unable to produce current lesson plans in May, 1986. Ms. Mitchell did not adequately plan. Therefore, she was unable to provide an effective learning environment and she was unable to reduce discipline problems. Ms. Mitchell failed to have a series of groups of students and a series of activities for each group throughout a school day. Ms. Mitchell failed to properly maintain cumulative folders during the 1986-1987 school year. Ms. Mitchell was given clear and detailed statements of her deficiencies throughout the 1985-1986 and 1986-1987 school years. The Superintendent of Duval County Public Schools brought charges against Ms. Mitchell seeking to discharge her for professional incompetency by certified letter dated May 19, 1987. The charges were based upon Ms. Mitchell's teaching performance during the 1985-1986 and 1986-1987 school years, the two years for which Ms. Mitchell received unsatisfactory evaluations. Ms. Mitchell was afforded a hearing in conformance with Chapter 120, Florida Statutes. Ms. Mitchell was afforded a speedy and public hearing, informed of the nature and cause of the accusations against her, confronted by accusing witnesses, given the opportunity to subpoena witnesses and papers and allowed to secure assistance of counsel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Mitchell be dismissed as a tenured teacher within the Duval County public school system. DONE and ENTERED this 11th day of October, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4581 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Board's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3. 3 46. 4 38 5 39 and 41. 6 40-41. 7 6 and 9. 8 17. 9 Hereby accepted. 10-11 20. 12 11. 13 18. 14-15 21. 16-17 Irrelevant. 18 11. 19 17. 20 13. 21 12. 22 14. 23 13. 24 42. Hereby accepted. See 40. 27 16. 28 43. 29 42. 30 34. 31 15. 32 See 39. 33 19. 34 22. 35 23. 36 24-25. 37 18, 38 Hereby accepted. 39 26. 40 28. 41-42 Irrelevant. 43 45. 44 27. 45 Hereby accepted. 46-47 30. 48-49 Hereby accepted. 50 31. 51 30. 52 32. 53 35. 54 Hereby accepted. 55 32 and 37. 56 33. 57 See 40. 58-61 Hereby accepted. 62 44. 63 36. Hereby accepted. Irrelevant. 66 32 and 37. 67 36. 68-69 Hereby accepted. 70 45. 71 Cumulative. 72 47. 73 48. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 3. 3 46. 4 5. 5 6. 6 10. 7-8 21. Hereby accepted. Not supported by the weight of the evidence. 11-13 7. 14 Not supported by the weight of the evidence. 15-16 Hereby accepted. 17 17. 18 24. 19 23. Irrelevant. See 25. 22 27. 23 29. 24-29 Not supported by the weight of the evidence or irrelevant. 30 8. 31-43 Not supported by the weight of the evidence or irrelevant. 44 Hereby accepted. 45 4. 46 8. 47 Hereby accepted. 48 36. 49-52 Not supported by the weight of the evidence or irrelevant. COPIES FURNISHED: Dolores R. Gahan Assistant Counsel City of Jacksonville 1300 City Hall Jacksonville, Florida 32202 Kenneth Vickers, Esquire Suite 1 437 East Monroe Street Jacksonville, Florida 32202 Herb A. Sang, Superintendent School Board of Duval County 1701 Prudential Drive Jacksonville, Florida 32207
Findings Of Fact Petitioner has been employed as a teacher by Respondent for thirteen years and has taught at the Prosperity Elementary School for the past ten years. She holds a Rank II teaching certificate based on her master's degree. Mr. Johnny Collins, the Superintendent of Schools, recommended that Petitioner be placed in the position of teacher-principal at Prosperity Elementary School for the 1981-82 school year. This recommendation was initially made in May or June, 1981. Respondent School Board rejected the Saunders nomination at its July 20, 1981, meeting. The reasons for the rejection as stated in the minutes are as follows: Mrs. Saunders failure to meet the qualifications of Chapter 231, Florida Statutes; 2) Failure to satisfy the job description as set forth in the approved job description for the Holmes County School Districts, specifically that principals be courteous, diplomatic and cooperative; that principals have leadership qualities; and that principals must be positive but not autocratic in solving problems; 3) failure to cooperate with past principals at Prosperity Elementary School and contributing to the disharmony amongst the personnel; 4) statements of Mrs. Flynn Jones, Tommy Hudson, Gerald Commander and Posie Vaughn. The incumbent Superintendent of Schools and his predecessor, along with five of Mrs. Saunders' previous direct supervisors, testified as to her qualifications. This testimony established that she is a competent teacher and has the necessary leadership ability to serve as a school principal. Her teacher evaluations have, without exception, been satisfactory or above in all areas. Petitioner's supervisor in 1972, Mrs. Flynn Jones, considered her rude and difficult to work with. Mrs. Saunders and Mrs. Jones had been on good terms until Mrs. Jones was appointed interim principal. Saunders, who apparently resented Jones' appointment, thereafter withdrew from her and responded only to formal instructions. Mr. Posie Vaughn has filled the Prosperity Elementary School teacher- principal position since 1978. He and Petitioner were competing applicants for the current school term principalship. Superintendent of Schools Collins, who took office in January, 1981, did not recommend Vaughn, but selected Saunders instead. After the School Board rejected Saunders, and Collins refused to nominate Vaughn, the School Board reappointed him. Mr. Vaughn has experienced the same personal hostility and lack of willing support which Mrs. Jones encountered. Mrs. Saunders, who resented Mr. Vaughn's appointment over her, once contacted the Superintendent of Schools to complain of teacher ratings (other than her own). On another occasion she criticized Vaughn's friendship with the piano teacher to School Board members. Mr. Vaughn testified to his belief that Mrs. Saunders is a troublemaker and not qualified to be principal. However, the ratings he filed on Saunders do not reflect these negative opinions. Further, Vaughn conceded that Saunders is a competent teacher and possesses the ability to lead. Mr. Dan Padgett, principal at Prosperity Elementary School from 1973 to 1976, found Mrs. Saunders to be a capable teacher and a courteous, cooperative employee. This favorable testimony was supported by several co-workers and parents of her pupils. Mrs. Margaret Woodall testified to her dissatisfaction with Mrs. Saunders' treatment of her child. However, her complaint as to Mrs. Saunders' disciplining methods received proper attention and Saunders made the requested change in her approach to the Woodall child.
Recommendation From the foregoing, It is RECOMMENDED that the School Board of Holmes County accept the recommendation of the Superintendent of Schools to place Juanita Saunders in the position of teacher-principal, Prosperity Elementary School. DONE AND ENTERED this 6th day of October, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1981.
